https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5341

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NYERI** **ELCA NO.9 OF 2019** **SAMUEL MWANGI NDIRITU...................................................APPELLANT** **-VERSUS-** **MBUTHIA NDIRITU.................................................................RESPONDENT** ***Appeal against the judgment of the Hon. M.N Munyendo, delivered in Othaya SRMCC No. 30 of 2018, on 22nd February 2019.*** **JUDGMENT** 1. The Appellant filed this appeal against the judgment of the Hon. M.N Munyendo, delivered in **Othaya SRMCC No. 30 of 2018** on 22nd February 2019. 2. The Memorandum of Appeal, dated 25th February 2019, sets out the following grounds of appeal: 3. **That the learned Trial Magistrate erred in law and fact by applying incorrect principles of law, thereby erroneously concluding that the appellant had not proved that a customary trust existed.** 4. **That the learned Trial Magistrate erred in law and fact by applying incorrect legal principles, thereby erroneously concluding that the rights of a person in possession or actual occupation of land are not regarded as customary trusts.** 5. **That the learned Trial Magistrate erred in law and fact by considering extraneous and irrelevant considerations, such as the Appellant's date of birth, thereby reaching an erroneous conclusion in the judgment.** 6. **That the learned Trial Magistrate failed to consider the pleadings on record and the evidence presented by the parties.** 7. **That the learned Trial Magistrate erred in both law and fact by neglecting to thoroughly evaluate the entire evidence and submissions submitted by the Appellant.** 8. **That the learned Trial Magistrate erred in both law and fact in dismissing the appellant’s suit, despite the appellant having submitted sufficient material to justify the orders sought.** 9. The Appellant prays as follows: 10. **It is hereby requested that the appeal be granted in its entirety.** 11. **That the judgment of Hon. M.N Munyendo, delivered on 22nd February 2019 in Othaya SRMCC No.30 of 2018, be set aside and/or varied.** 12. **That the Honourable Court grants any additional or further reliefs as it may consider necessary.** 13. **That the costs of the appeal be provided for.** **Summary of proceedings in the trial court** 1. The suit in the Trial Court was instituted vide Originating Summons dated 18th May 2018, in which the Plaintiff sought the following orders against the Defendant: 2. **That a declaration be issued that Title Number Othaya/Kihugiru/1861, registered in the name of the Defendant, is held in trust for the Plaintiff.** 3. **The Defendant, as trustee for the Plaintiff, be ordered to transfer the trust property, Title Number Othaya/Kihugiru/1861, to the Plaintiff herein, and that a Title Deed be issued by the Land Registrar, Nyeri, in the name of the Plaintiff herein** 4. **The costs of this suit together with interest at Court rates.** 5. The grounds upon which the originating summons is sought, as set out in the originating summons and the supporting affidavit thereto, are that, although the suit title is registered in the Defendant’s name, the Plaintiff claims it is so registered in trust for him, as they are brothers. 6. The Plaintiff deposed that the Defendant was registered as the proprietor of the mother title of the suit property, known as Title Number Othaya/Kihugiru/107, as a trustee for his siblings, and that this title was subdivided into Title Numbers Othaya/Kihugiru/1858-1864. 7. The Plaintiff averred that he has been in occupation and use of Title Number Othaya/Kihugiru/1861 as his share from birth to date. Still, the Defendant has resisted any attempts to determine the trust. **The Defendant’s replying affidavit** 1. The Defendant then filed a replying affidavit in response to the Plaintiff’s claim, deposing that the Plaintiff has no locus to bring the suit. 2. He admitted that he was the registered owner of Title Number Othaya/Kihugiru/107, which was later subdivided into 7 portions, but denied ever holding the land in trust for the Plaintiff. He also denied that the Plaintiff is his brother. 3. The Defendant deposed that he acquired Title Number Othaya/Kihugiru/107 on or about the year 1960, when it was registered in his name by his grandfather, Mbuthia Wainoga, when he was about 6 years old. 4. His grandfather died when he was 23 years old, and he states that at no point did he alter his position as the absolute owner of the suit property. 5. He also informed the Court that his mother had sued him in **Nyeri High Court, Civil Case No. 16 of 1990,** claiming she was the rightful heir to LR. Othaya/Kihugiru/107. The Court dismissed the claim and held that the Defendant was the sole proprietor of the land, to the exclusion of any other person. 6. The Defendant denied that the Plaintiff or any of the Plaintiff's siblings are his brothers, as his father died when he was barely 2 years old and the Plaintiff and his siblings were born many years later. 7. The Defendant stated that he chose to subdivide and allocate portions of the mother suit parcel to the Plaintiff and his siblings of his own free will, and that this should not be misrepresented as indicating that he holds the suit parcel in their trust. 8. When the suit was heard on 30 August 2018, PW 1, the Plaintiff, stated to the Court that all his siblings had been registered as proprietors of their respective parcels of land, except for him, and prayed to be issued with his title deed. 9. On cross-examination, PW 1 stated that the Defendant was not his biological brother. He also acknowledged that the Defendant did not sign the Land Control Board application form. He further stated that he and the Defendant have the same mother. 10. PW 2, John Waiganjo Gacheru, Senior Chief of Gitundu sub-location, gave his testimony on behalf of the Plaintiff’s case. He produced a letter he drafted, dated 05/07/2018, stating that the suit land LR 1861 belongs to the Plaintiff, with the rest of the siblings owning their respective portions. 11. On cross-examination, PW 2 stated that the Defendant lives on LR 1858. However, he did not know when the Defendant became the owner of the suit property, but stated that, even though he was not present, the history of the land is available. 12. DW 1, the Defendant, also gave evidence in court and reiterated the averments in his replying affidavit, namely that his grandfather, Mbuthia Ndiritu, registered the suit land in his name when he was young. He denied holding the land in trust and stated that, since his mother had children with another man, the Plaintiff should acquire land from his father. 13. Upon cross-examination, the Defendant stated that he gave out land of his own free will and that he attended the Land Control Board for everyone other than the Plaintiff herein and his mother. 14. The Trial Magistrate delivered judgment on 22nd February 2019 and found that there was no evidence of intention to create a trust, as the suit land was a gift from the Defendant’s grandfather, and dismissed the suit. The Appellant sought an appeal from this decision. **Analysis and Determination** 1. The role of a first appellate court was succinctly articulated in the case of **Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR**, and is summarized as follows: ***“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”*** 1. The land in dispute in the appeal herein is L.R Othaya/Kihugiru/1861, which the Appellant claims was to be held in trust for him, is registered in the Respondent’s name, and is subject to a customary trust; therefore, the suit land should be registered in his name. 2. The facts of the case are that the original owner of the land in the mother title suit, L.R Othaya/Kihugiru/107, known as Mbuthia Wainoga, had it registered in the Respondent’s name in 1960, when he was about 6 years old. 3. The Appellant did not refute this fact, and, as appears, the Respondent’s grandfather gifted him the land when he was still very young and ensured that it was registered in the Respondent’s name as the absolute proprietor. The Appellant claims that the land was supposed to be held in trust for the family members, highlighting that all his siblings each had a parcel of the resultant subdivisions of the suit land, apart from him. 4. It is trite law that a customary trust must be proven. The Court of Appeal in **Juletabi African Adventure Ltd & another v Lockley (Civil Appeal 75 of 2016) [2017] KECA 118 (KLR) (23 November 2017) (Judgment)** held that: ***“It is settled that the onus lies on a 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 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.”*** ***See Gichuki vs. Gichuki [1982] KLR 285 and Mbothu & 8 Others vs. Waitimu & 11 Others [1986] KLR 171.”*** 1. In the leading decision **Kiebia v M’lintari & another (Petition 10 of 2015) [2018] KESC 22 (KLR)**, the Supreme Court articulated the following guidelines for the realization of customary trusts: ***“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 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. Regarding the first point aforementioned, there is no evidence indicating that the land in question belonged to a family, clan, or group. The land was transferred directly from one sole owner to another during the lifetime of the original proprietor. It is clear that the land was a definitive gift from a grandfather to his grandchild, as it did not pass through the customary process of inheritance to the Respondent. 2. The Respondent affirmed that he transferred the land solely to the Appellant’s siblings voluntarily; however, this does not imply that the Appellant is also entitled to a portion of the land resulting from the subdivisions. 3. Thus, in my considered view, the Appellant failed to prove the existence of a trust over the suit property, and the Learned Trial Magistrate did not err in dismissing the suit 4. Therefore, the current appeal has no merit and is dismissed with costs. **Dated, signed, and delivered virtually at Nyeri on this 19th day of August 2026.** **E. K. MAKORI** **JUDGE** **In the Presence of:** **Mr. Nderitu for the Appellant** **Respondent (in person)** **Denis - Court Assistant**