https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3570

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MERU** **ELC APPEAL E087 OF 2025** SABELLA WANJA M’MUGA………………………………..……..APPELLANT VERSUS DORIS GATWIRI……………………………………..………. 1ST RESPONDENT SHARON NKATHA MAIRANYI……...……………………..2ND RESPONDENT MAGIRI KIRIMI M’RIMBERIA……………….……………..3RD RESPONDENT ***[Being an appeal from the Judgment and decree of Hon. C.M NYIGEI – PM in Meru MCELC E002 OF 2023 delivered on 16th October 2025]*** **JUDGEMENT** 1. The Appellant *[who was the Plaintiff in the lower court]* filed the Plaint dated 26.01.2023 whereby the Appellant sought the following reliefs: 2. ***A declaration that LR. No. Kiirua/ Naari-Maitei/2646,2467 & 2468 which resulted from LR. No. Kiirua/ Naari-Maitei/761 are ancestral land and the plaintiff’s rights and occupation of the same has risen due to her considerable long-time possession and developments thereof and an order be issued that the suit properties be transferred to the Plaintiff.*** 3. ***An order that the defendants dealing with LR. No. Kiirua/ Naari-Maitei/2646,2467 & 2468 which resulted from LR. No. Kiirua/ Naari-Maitei/761 measuring 0.36 Ha and acquisition of the land parcels thereof were fraudulent acquired and the registration should be cancelled henceforth*** 4. ***An order directing the Land Registrar Meru Central to cancel the registration of LR. No. Kiirua/ Naari-Maitei/2646,2467 & 2468 (hereinafter referred to as the suit properties) as the same were illegally acquired and registered vide LR. No. Kiirua/ Naari-Maitei/761 measuring 0.36 Ha which was registered in the names of the 3rd defendant should be registered in the names of the plaintiff and in the event of the 3rd defendant failing to do so, the executive officer of this court do sign all the requisite transfer documents t effect the transfer thereof in the names of the plaintiff.*** 5. ***An order of permanent injunction the defendants, by themselves, their agents, assigns, legal representative, heirs or by whosoever acting at their behest and authority from entering onto, subdividing, fencing, erecting any structures, cultivating, wasting, alienating or in any other way interfering with the plaintiff’s beneficial share of LR. No. Kiirua/ Naari-Maitei/2646,2467 & 2468 which resulted from LR. No. Kiirua/ Naari-Maitei/761 measuring 0.36 Ha*** 6. ***Cost of the suit plus interests thereon at court rates*** 7. ***Any other relief that this honorable court may deem fit to grant*** 8. *Vide* the plaint dated 26.01.2023, the Appellant averred that the Appellant was the beneficial owner of ***LR. No. Kiirua/ Naari-Maitei/761 measuring 0.36 Ha*** (*hereinafter referred to as the original suit property*) having been in possession of the same since the year 1986. For clarity, it was alleged by the Appellant that her father, ***Elijah M’Muga M’Ndethi***, now deceased was the original registered owner of the original suit property and that the said parcel of land was fraudulently transferred to the 1st and 2nd respondents without the knowledge of the Appellant nor the deceased. [See paragraph 6 of the plaint]. 9. The Appellant contended that in the year 2018, the 1st ad 2nd Respondents conspired and transferred the original suit property to the 3rd Respondent fraudulently and unlawfully. 10. Subsequently, the Appellant particularized the particulars of fraud at paragraph 7 of the plaint against the respondents. It is to be noted that there were no particulars of trust listed in the plaint despite the Appellant claiming customary trust over and in respect of the suit properties. 11. Upon being served with the plaint, the respondents herein lodged a statement of defense dated 26.06.2023 whereby the respondents contended that the Appellant’s deceased father had sold the original suit property to the 1st and 2nd respondents who in turn subdivided the said property and transferred to the 3rd respondent. 12. It was the respondents’ case that the appellant, her sibling[s] and mother had sued the deceased *vide* **MERU CMC ELC NO. 25 OF 2017** whereby same challenged the sale of the original suit property on grounds that the original suit property was an ancestral land incapable of being sold. The respondents contended that the said suit was determined on the 18th September 2019 whereby the suit was dismissed. For coherence, it was the respondents’ case that the court therein found that the original suit property was not an ancestral land and that the deceased had all the right as the registered owner to deal with same in the manner he pleased. 13. Besides, the respondents *vide* their statement of defense pleaded that same were innocent purchasers for value and that there was no reasonable cause of action against them. 14. The suit before the lower court was heard and disposed of vide Judgement delivered on 16.10.2025. The Learned Trial Magistrate [ Hon C.M. Nyigei – PM] found and held that the Appellants had not proved customary trust in respect of the suit properties. In addition, the Learned Trial Magistrate also found that the allegations of fraud had not been proved to the required standards. To this end, the Learned Trial Magistrate proceeded to dismiss the Appellant’s suit. 15. It is the said Judgment and the consequential decree that has aggrieved the Appellant and thus provoked the appeal. The appeal is premised on the memorandum of appeal dated 15.11.2025. 16. The subject appeal came up for directions on 10.03.2026, whereupon learned counsel for the Appellant intimated to the court that same had since filed and served the record of appeal. In addition, learned counsel posited that the record of appeal was complete. The counsel thereafter sought directions as pertains to the hearing and disposal of the appeal. Furthermore, counsel proposed to have the appeal canvassed by way of written submissions. 17. With the concurrence of Learned Counsel for the Respondents, the court proceeded to and issued directions in line with **Order 42 Rule 13 of the Civil Procedure Rules 2010**. The directions were: The appeal shall be heard before one judge sitting at Meru: the appeal shall be canvassed by way of written submissions; the Appellant shall file and serve written submissions within 21 days from the date of directions; the Respondents shall file and serve written submissions within 21 days from the date of service; and the Appellant shall be at liberty to file rejoinder submissions, if any, and same to be filed and served within 7 days from the date of service. The court thereafter fixed a return date for mention to confirm compliance. 18. The Appellant filed written submissions dated 20.04.2026. The Appellant has raised and canvassed three key issues. The issues highlighted by the Appellant are: The Appellant tendered and adduced credible evidence to demonstrate the existence of customary trust and that the sale and transfer of the suit properties to the respondents were fraudulent; and the Learned Trial Magistrate failed to evaluate the evidence on record. 19. Learned counsel for the Appellants have thereafter cited and referenced various decisions, including **Munyu Maina vs Hiram Gathiha Maina (2013) eKLR and Meli vs Rop KEELC [2025].** 20. The Respondents filed written submissions dated 8.05.2026, wherein the Respondents has raised and canvassed three [3] key issues. The issues are: Whether the suit therein was res judicata by dint of **MERU CMC ELC NO. 25 OF 2017**; Whether the Appellant established existence of a customary trust over ***the suit properties***; and Whether the sale of the suit properties to the 3rd Respondent was fraudulent. 21. Learned counsel for the Respondents has thereafter reviewed the totality of the evidence that was tendered before the trial court; highlighted key legal principles underpinning customary trust, res judicata and fraud; and thereafter cited various decisions. The decisions cited are: **Benson Ngugi v Francis Kabui Kinyanjui & 3 others, Kiebia vs M’Lintari & another 2018 KESC 22 and Vijay Morjaria v Nansingh Madhusingh & Another [2000] eKLR.** 22. Flowing from the foregoing submissions and taking into account the various case laws cited, learned counsel for the Respondents contended that the Learned Trial Magistrate correctly apprehended the law on customary trust; correctly applied the law to the facts of the case; and arrived at the correct conclusion. The court has been invited to find that the subject appeal is meritless. 23. Having reviewed the record of appeal, the pleadings by the parties, the evidence tendered, both oral and documentary, the written submissions and upon taking into account the applicable law, I come to the conclusion that two [2] issues crystallize for determination. The issues are: 24. ***Whether the Appellant proved the plea of customary trust to the requisite standard or otherwise;*** 25. ***Whether the allegation of fraud was proved;*** 26. ***Whether the Learned Trial Magistrate misapprehended and misapplied the law as pertains to customary trust or otherwise.*** 27. Before venturing to address the thematic issues that have been isolated in the preceding paragraph, it is important to highlight that what is before me is a first appeal. By virtue of being a first appeal, this court is mandated to undertake a fresh and exhaustive scrutiny, review, and analysis of the totality of evidence tendered before the court of first instance. The court is obligated to review the evidence and determine whether the finding and conclusion arrived at by the trial magistrate accord with the evidence on record and the legal principles. 28. The court is seized of the authority and jurisdiction to arrive at an independent conclusion and to depart from the findings of the trial court. However, it is established that the appellate court can only depart from the factual finding[s] and conclusion[s] of the trial court where it is demonstrated; that the conclusions were based on no evidence; the conclusions are perverse to the evidence on record; the findings are based on misapprehension of the evidence and law; and that there is a demonstrable error of principles, which vitiates the findings of the trial court. 29. Suffice it to state that, barring the foregoing, the first appellate court is enjoined to defer to the findings and conclusions of the trial court. Notably, the jurisdiction of the first appellate court to interfere with the findings/conclusions of the trial court is circumscribed. The jurisdiction is not at large. In addition, the jurisdiction cannot be exercised for the mere asking; or willy nilly. 30. The jurisdictional remit of the first appellate court, while undertaking its mandate as pertains to the first appeal, has been the subject of various court decisions. In the case of **Odera t/a AJ Odera & Associates v Machira t/a Machira & Co Advocates [2013] KECA 208 (KLR).** The Court of Appeal expounded on the scope of the jurisdiction. The court stated thus *46. We also wish to be guided by the reasoning of this court in the case of Mwana Sokoni versus Kenya Business Limited (1985) KLR 931 page 934,934 thus:-“Although this court on appeal will not lightly differ from the Judge at first instance on a finding of fact, it is undeniable that we have the power to examine and re-evaluate the evidence on a first appeal if this should become necessary. As was said by the House of Lords in Sottos Shipping versus Sauviet Sohold, The Times, March 16, 1983.“It is uncertain whether their Lordships should have reached the same conclusion on the evidence, but it is important that, sitting in the appellate court they should be over mindful of the advantages enjoyed of the trial Judge who saw and heard the witnesses and was in a comparably better position than the Court of Appeal to assess the significance of what was said, how it was said, and equally impotent what was not said” Again in Peters versus Sunday Post Limited (1958) EA424, a decision of the Court of Appeal for Eastern Africa, Sir Kenneth O’ Conner, P said at page 429: “It is a strong thing for an appellate court to differ from the finding on a question of fact of the Judge who tried the case and who has had the advantage of seeing and hearing and the witnesses* 19. Recently, the Court of Appeal revisited the jurisdictional remit in the case of **Kenya Urban Roads Authority & another v Belgo Holdings Limited [2025] KECA 764 (KLR).** The Court stated thus: 1. *We have considered the appeal, and this being a first appeal, we are under a duty to subject the entire evidence and the judgment to a fresh and exhaustive examination with a view to reaching our own conclusions in the matter. In carrying out this duty, we have to remember that we had no opportunity of seeing and hearing the witnesses who testified during the trial and to make an allowance for the same. We have also to remember that it is a big thing to overturn the findings of a trial court which has had the singular opportunity of reaching its conclusions based on a combination of the evidence adduced and observation by the court of the demeanour of witnesses. In a nutshell, a first appellate court must of necessity proceed with caution in deciding whether or not to interfere with the findings of a trial court, but of course, where such findings are not supported by the evidence on record or where they are founded on a misapprehension of the law, the axe must fall on the impugned judgment. This position is anchored in section 78 of the*[Civil Procedure Act](https://new.kenyalaw.org/akn/ke/act/1924/3)*, which requires a first appellate court to re-evaluate, reassess, and reanalyze the extracts of the record and draw its own conclusions. These provisions have been underscored in numerous decisions of the Superior Courts among them Peters v Sunday Post Limited [1958] EA 424, where the predecessor to this Court expressed itself as follows:* *“Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law an appellate court has jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this really is a question of law), the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to the courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given…Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge’s conclusion. The appellate court may take the view that, without having seen or heard the witnesses it is not in a position to come to any satisfactory conclusion on the printed evidence. The appellate court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question..* *It not infrequently happens that a decision either way may seem equally open, and when this is so, then the decision of the trial Judge who has enjoyed the advantages not available to the appellate court becomes of paramount importance and ought not be disturbed. This is not an abrogation of the powers of a Court of Appeal on questions of fact. The judgment of the trial Judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved or otherwise to have gone plainly wrong.”* 1. Bearing in mind the principles enunciated in the decisions [supra], it is now apposite to revert to the issues for determination. I shall address the issues sequentially. **ISSUE NO. 1** ***Whether the Appellant proved the plea of customary trust to the requisite standard or otherwise*** 1. The Appellant’s case was that the deceased was her father and that same had been settled on the original suit property. According to the appellant, because of her long occupation on the suit property and the fact that the original suit property had been registered in the name of her deceased father, same was an ancestral land thus the deceased was holding the land in trust for her. 2. I beg to state that any claimant, the Appellant not excepted, is enjoined not only to plead customary trust but also to supply the particulars underpinning the plea of customary trust. It is only after the particulars have been supplied that the claimant is called upon to tender plausible, cogent, compelling and concrete evidence to prove the plea of customary trust. The evidence to be tendered must relate to a proper pleading before the court. 3. The plaint dated 26.01.2023, bears no particulars of trust. According to the appellant, the suit properties was an ancestral land that originally belonged to the appellant’s father. 4. While still addressing the first issue, it is thus critical to interrogate whether the ingredients that must be proven before a plea of customary trust were demonstrated. The elements to be established were distilled by the Supreme Court of Kenya in the case of Kiebia **v M’lintari & another [2018] KESC 22 (KLR) the court stated thus:** *52. Flowing from this analysis, we now declare that a customary trust, as long as the same can be proved to subsist, upon a first registration, is one of the trusts to which a registered proprietor is subject under the proviso to Section 28 of the Registered Land Act. Under this legal regime (now repealed), the content of such a trust can take several forms. For example, it may emerge through evidence that part of the land, now registered, was always reserved for family or clan uses, such as burials, and other traditional rites. It could also be that other parts of the land, depending on the specific group or family setting, were reserved for various future uses, such as the construction of houses and other amenities by youths graduating into manhood. The categories of a customary trust are therefore not closed. It is for the court to make a determination, on the basis of evidence, as to which category of such a trust subsists as to bind the registered proprietor. Each case has to be determined on its own merits and quality of evidence. It is not every claim of a right to land that will qualify as a customary trust. In this regard, we agree with the High Court in Kiarie v. Kinuthia that what is essential is the nature of the holding of the land and the intention of the parties. If the said holding is for the benefit of other members of the family, then a customary trust would be presumed to have been created in favour of such other members, whether or not they are in possession or actual occupation of the land. Some of the elements that would qualify a claimant as a trustee are:1.****The land in question was before registration, family, clan or group land;*** *2.****The claimant belongs to such family, clan, or group****;* *3.****The relationship of the claimant to such family, clan or group is not so remote or tenuous as to make his/her claim idle or adventurous;*** *4.****The claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances;*** *5.* ***The claim is directed against the registered proprietor who is a member of the family, clan or group****.* 1. On the first element; t***he land in question was before registration, family, clan or group land;*** the Appellant was enjoined to prove and demonstrate that the suit properties were family or ancestral land. However, it is common ground that the original suit property was originally registered in the name of the appellant’s father who later transferred the suit property to the 1st and 2nd respondents while the 3rd Respondent is the current registered owner of the suit properties. The transfer of the original suit property to the 1st and 2nd Respondent was done during the lifetime of the appellant’s father. D EXH 1 was the sale agreement between the deceased and the 1st and 2nd Respondent which agreement was executed in the year 2011. The respondents have no family relationship nor clannism with the Appellant herein hence a question that begs to be answered is whether the claim for customary trust would accrue against third parties not related in any way to the claimant. 2. **D EXH 3** was a Judgement vide **MERU ELC CASE NO. 25 OF 2017** whereby the Appellant herein and members of her family had sued the original owner of the original suit property, the 1st and 2nd Respondents herein contending that the suit property was a family land hence the deceased could not sell the original suit property to the 1st and 2nd respondents. The suit therein was dismissed, the connotation being that the deceased was at liberty to deal with the original suit property whoever he wished. Besides, the said decision was to the effect that the original suit property was not a family nor ancestral land but was lawfully belonged to the deceased. On this point, the Appellant failed to prove that the original suit property was an ancestral land. 3. ***Second is the element that the claimant belongs to such family, clan, or group.*** Though the Appellant was the daughter to the original owner of the original suit property, having found that a competent court of law had decreed that the original suit property was not an ancestral land, it is immaterial whether the Appellant was related to the deceased or not. ***Thirdly***, the relationship between the Appellant and the respondents are so remote in that the respondents were purchasers of the suit properties and were not in any way related to the appellant. 4. Fourthly, all the Appellants failed to prove that same could been registered as the owner of the suit properties by virtue of being family member of the deceased save for intervening circumstance. The bottom line is that the claimant must show that the land in question could very well have been registered in his name, save that the claimant was either a minor, of unsound mind, was not available at the point in time, or there was a family agreement warranting the registration in the name of the registered owner. In this case, the deceased transferred the original suit property to the 1st and 2nd Respondent during his life time. The Appellant lodged a suit vide **MERU ELC CASE NO. 25 OF 2017** to challenge the sale on grounds that same was a family land thus could not be sold to the 1st and 2nd respondent. There was no evidence placed before the trial court to demonstrate that the decision therein was set aside. In my humble view, once it was demonstrated that the sale to the 1st and 2nd Respondent was proper and that the deceased had legal rights to deal with the original suit property howsoever, he wished, the suit in the trial court was ***res judicata*** as it confirmed that the original suit property and by extension the suit properties were not family and/or ancestral land. 5. Can it be said that the suit properties could have been registered in the name of the Appellant? The suit properties did belong to the deceased and he did not hold it in trust to any third parties. Lastly, the claim on trust has been directed to a member of the family to the appellants. The respondents are not related to the Appellant in any way. The respondents herein were purchasers of the original suit property and the suit properties. To that extent, it is my considered view that the Appellant failed to prove the ingredients of customary trust against the respondents. The suit properties were not ancestral land thus the claim for customary trust fails. 6. Proof of trust, including customary trust, is dependent on the evidence tendered. The evidence must be consistent, credible and compelling. Absent evidence, the plea of trust, including customary trust dissipates into thin air; or collapses. 7. In the case of **Kazungu Fondo shutu vs Japhet Noti Charo 2021 KECA** *28. The concept of trust must however, be proved. This Court in the case of*Mumo v Makau [2002] 1EA.170,*held that “*trustis a question of fact to be proved by evidence…..” *See also* Kanyi Muthiora v Maritha Nyokabi Muthiora, Nairobi Court of Appeal No.19 of 198 *29. In*Juletabi African Adventure Limited & another vChristopher Michael Lockley [2017] eKLR*, this Court dealt with the issue of trust at length. The Court referred* Twalib Hatayan Twalib Hatayan & Anor v Said Saggar Ahmed Al-Heidy & Others [2015] eKLR *and re-stated the law on trusts as follows: -* “According to Black’s Law Dictionary, 9th Edition, a trust is defined as “1. The right, enforceable solely in equity, to the beneficial enjoyment of property to which another holds legal title; a property interest held by one person (trustee) at the request of another (settlor) for the benefit of a third party (beneficiary).” Under the Trustee Act, “… the expressions' trust' and 'trustee' extend to implied and constructive trust, and cases where the trustee has a beneficial interest in the trust property…” In the absence of an express trust, we have trusts created by operation of the law. These fall within two categories: constructive and resulting trusts. Given that the two are closely interlinked, it is perhaps pertinent to look at each of them in relation to the matter at hand. A constructive trust is an equitable remedy imposed by the court against one who has acquired property by wrongdoing. … It arises where the intention of the parties cannot be ascertained. If the circumstances of the case are such as would demand that equity treat the legal owner as a trustee, the law will impose a trust. A constructive trust will thus automatically arise where a person who is already a trustee takes advantage of his position for his own benefit (see Halsbury’s Laws of England supra at para 1453). As earlier stated, with constructive trusts, proof of parties’ intention is immaterial; for the trust will nonetheless be imposed by the law for the benefit of the settlor. Imposition of a constructive trust is thus meant to guard against unjust enrichment. … A resulting trust is a remedy imposed by equity where property is transferred under circumstances which suggest that the transferor did not intend to confer a beneficial interest upon the transferee ... This trust may arise either upon the unexpressed but presumed intention of the settlor or upon his informally expressed intention. (See Snell’s Equity 29th Edn, Sweet & Maxwell p.175). Therefore, unlike constructive trusts, where unknown intentions may be left unexplored, with resulting trusts, courts will readily look at the circumstances of the case and presume or infer the transferor’s intention. Most importantly, the general rule here is that a resulting trust will automatically arise in favour of the person who advances the purchase money. Whether or not the property is registered in his name or that of another is immaterial (see Snell’s Equity at p.177) (supra).” *31. As earlier stated, the existence of a trust is a question of evidence. In the****Juletabi****case (supra), the court held that the onus lies on the party relying on the existence of a trust to prove it through evidence. That is because:* “The law never implies, the Court never presumes a trust, but [only] in case of absolute necessity. The Courts will not imply a trust save in order to give effect to the intentions of the parties. The intention of the parties to create a trust must be clearly determined before a trust will be implied.” *32. The onus to prove the existence of a trust lay squarely on the Appellants.*Section 107*of the*Evidence Act*further provides that:* “Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.” *The Supreme Court in* ***Shah & 7 Others -vs- Mombasa Bricks & Tiles Ltd & 5 Others (Petition No. 18 (E020) of 2022 [2023] KESC 106 (KLR)*** *emphasized that a constructive trust arises when it would be inequitable for a legal owner to deny another party a beneficial interest. The trust protects the rightful interests of disadvantaged parties when legal owners abuse their position* 1. Clearly, the claim lodged by the Appellant was misplaced and ought not to have been a claim on customary trust. Same failed to demonstrate vide evidence that the original suit property was ancestral land thus being held on trust for herself by the deceased. In fact, all through the submissions by the appellant, same failed to submit on the issue of the decision vide **MERU ELC CASE NO. 25 OF 2017** whereby the Appellant had sued the 1st and 2nd Respondent and the deceased over the sale of the original suit property. The trial court thus appreciated the evidence particularly **D EXH 3** being the judgment dated 18th September 2019 that dismissed the said suit. 2. Before going delving on Issue two of this judgment, it has been submitted by the respondents that same were bona fide purchasers having purchased the original suit property in the year 2011. 3. It is critical that I address the issue of bona fide purchaser as submitted by the respondents. For clarity, I have found in the preceding paragraphs that the respondents did not hold the suit properties in trust for the appellant. The 1st and 2nd Respondent *vide* **D EXH 1**, also the land sale agreement purchased the properties from the deceased during his life time. Interestingly, the estate of the deceased has not been sued by the Appellant yet same was seeking an order that the suit properties be cancelled and the original suit property be restored in the name of the deceased. For clarity, as correctly pointed out by the Trial court, the Appellant was not the legal representative of the estate of her father hence could not litigate on behalf of the estate without being appointed as the legal representative. [***See Section 82 of the Law of Succession Act Cap 160***]. **Paragraph 6 of the plaint** clearly demonstrate that the Appellant was litigating on behalf of the estate of her deceased father yet she had no locus standi to lodge the suit. 4. Back to the issue of bona fide purchaser, could it be said that the respondents are innocent Purchasers? Certainly yes! In ***Mwangi James Njehia v. Janetta Wanjiku Mwangi another* [2021] eKLR**, the Court of Appeal stated as follows: *“ 37. In Lawrence P. Mukiri Mungai, Attorney of Francis Muroki Mwaura v. Attorney General & 4 Others, Nairobi Civil Appeal No. 146 of 2014 this Court cited with approval the case of Katende v. Haridar & Company Ltd (2008) 2 EA 173, where the Court of Appeal in Uganda held that: - “For the purposes of this appeal, it suffices to describe a bona fide purchaser as a person who honestly intends to purchase the property offered for sale and does not intend to acquire it wrongly.* *For a purchaser to successfully rely on the bona fide doctrine as was held in the case of Hannington Njuki v William Nyanzi High Court civil suit number 434 of 1996, he must prove that:* *1. he holds a certificate of title;* *2. he purchased the property in good faith;* *3. he had no knowledge of the fraud;* *4. he purchased for valuable consideration;* *5. the vendors had apparent valid title;* *6. he purchased without notice of any fraud; and* *7. he was not party to the fraud.”* 1. I have already found that from the evidence on record, respondents were aware that the deceased was the registered owner of the original suit property. In fact, the sale was vindicated by the Judgment *vide* **MERU ELC CASE NO. 25 OF 2017** also **D EXH 3**. Thus, same were innocent purchasers and after conducting due diligence, they became the registered owners of the suit properties. 2. It is thus my humble view that the Appellant failed to demonstrate that the suit properties were ancestral land thus the respondents did not hold the suit properties in trust for the Appellant neither were the suit properties ancestral land **ISSUE N0 2** ***Whether the allegation of fraud was proved*** 1. At **paragraph 7 of the Plaint**, the Appellant listed particulars of fraud on the part of the Respondents herein. It was the duty of Appellant to not only plead fraud but specifically prove the allegations therein. I have found that the Appellant lacked the locus standi to litigate over and in respect of the suit properties in the manner she did. She sought for an order for cancellation of the titles and restoration of the original suit properties in the name of the deceased yet she had no capacity to do that. 2. Even assuming that the Appellant had capacity to sue on behalf of the estate of the deceased,[which is not the case], I have had a chance to peruse the record of appeal. **P EXH 4** was the green card in respect of the original suit property. It is certified as the true copy of the original by the land registrar on the **18th January 2012**. The connotation pursuant to **Section 26 of the Limitation of Actions Act** was that the alleged fraud as to the transfer of the original suit property was discovered by the Appellant on the **18th January 2012**. The time for lodging the suit was ***3 years*** from the date of discovery thus it lapsed on **18th January 2015**. The suit before the trial court was lodged in **January 2023**, i.e to say, ***8 years*** after the lapse of the statutory period. Thus, the claim on fraud was statute barred. 3. Be that as it may, was allegation of fraud proved? In the authority of **KINYANJUI KAMAU V GEORGE KAMAU NJOROGE [2015] EKLR**, the honorable appellate judges when dealing with an issue of fraud held that, ***‘…it is trite law that any allegations of fraud must be pleaded and strictly proved. See NDOLO V NDOLO (2008) 1 KLR (G &F) 742 where the court held that:’…we start by saying that it was the Respondent who was alleging that the will was a forgery and the burden to prove that allegation law squarely on him. Since the Respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases namely proof upon a balance of probabilities but the burden of proof on the Respondent was certainly was certainly not one beyond a reasonable doubt as in criminal cases…’*** 4. The appellate judges in the above-mentioned case continued to hold that, ‘… ***in cases where fraud is alleged, it is not enough to simply infer fraud from the facts***. In **VIJAY MORJARIA V NANSINGH MADHUSINGH DARBAR & ANOR [2000] EKLR**, Tunoi JA (as he was then) stated as follows,’ ***it is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must of course be set out, and then it should be stated that these facts were done fraudulently. It is also alleged that fraudulent conduct must be distinctly alleged and as distinctly proved and it is not allowable to leave fraud to be inferred from the facts…’*** The appellate court held,’…***in this case fraud cannot be imputed on the part of the Respondent by mere fact that the record in relation to the subject property was missing at the lands registry. To succeed in the claim for fraud, the Appellant needed to not only plead and particularize it, but also lay a basis by way of evidence upon which the court would make a finding…***’ 5. The Respondents demonstrated that the deceased entered into a sale agreement for purposes of sale of the original suit property. It has not been demonstrated that the sale was fraudulent. Further, and in any event, the decision *vide* **MERU ELC CASE NO. 25 OF 2017** also **D EXH 3** was to the effect that the sale was proper and that the deceased was at liberty to enter into the said transaction with the 1st and 2nd respondents. 6. In the case of **JAMES MUNIU MUCHERU V NATIONAL BANK OF KENYA LIMITED [2019] EKLR,** the honorable appellate judges held that, ***‘…indeed it is settled law that in civil cases the standard of proof is on a balance of probability. This is in effect to say that the courts will make a finding based on which party’s version of the story is more believable…’*** **Section 107** of the Evidence Act places the burden of proving the alleged on the person alleging. That burden was not discharged by the Appellant herein. 7. **Sections 107 and 108** of the **Evidence Act** places the burden of proof on the party who alleged that the respondents fraudulently obtained the suit properties. He who alleges must prove the alleged. Was that burden been discharged by the Appellant before the trial court? The answer is in the negative. I thus conclude that the allegations of fraud were not proved to the required standards. To my mind, the allegations remained just as such. **ISSUE NO. 3** ***Whether the Learned Trial Magistrate misapprehended and misapplied the law as pertains*** to ***customary trust or otherwise*** 1. Having read the Judgment of the trial court, despite not addressing the issue of fraud comprehensively, nevertheless same found that fraud was not proved. The learned trial magistrate appreciated the elements that a party claiming customary trust must prove. The evidence by the Appellant was that due to the fact that the deceased had been registered as the owner of the original suit property and by virtue of the deceased being her father and due to the long occupation on the suit properties, the Appellant was of the view that the suit properties were ancestral land. 2. On the other hand, the deceased had sold the original suit properties during his life time and that an attempt to challenge the said sale was thwarted *vide* the Judgment vide **MERU ELC CASE NO. 25 OF 2017** also **D EXH 3.** The trial magistrate appreciated the evidence placed before her and thus arrived at a sound decision. The issue before the trial court had been litigated over and rights of the parties including the deceased had been pronounced in the said suit. The Appellant thus abused the due process of the court when same lodged a fresh suit over the same issues. He was testing the waters. The trial court correctly applied the supreme court decision in the case before her and thus was right to dismiss the suit. 3. Additionally, I find and hold that the conclusion[s] and findings which were arrived at by the trial magistrate were anchored by the evidence on record; and based on sound principles of the law as pertains to customary trust and Fraud. 4. *In a nutshell*, I conclude that the findings of the trial court were well grounded; unassailable; and ought not be disturbed. **Final orders.** 1. Flowing from the analysis contained elsewhere hereinbefore, the final orders of the court are: 2. ***The Appeal be and is hereby dismissed.*** 3. ***The Judgment of the Learned Trial Magistrate dated 16.10.2025 and the consequential decree arising therefrom are hereby upheld.*** 4. ***The Costs of the Appeal is hereby awarded to the respondents***. 5. It is so ordered. **DATED, SIGNED AND DELIVERED AT MERU THIS 08TH DAY** **OF JUNE, 2026.** **OGUTTU MBOYA, FCIArb; CPM[MTI-EA]** **JUDGE** In the presence of-: Court Assistant: Zakayo Mr. Muchiri holding brief for Ms. Maore for the Appellant Mr. Charles Mwalimu for the Respondent