1.The appellant Japhet Munene filed this appeal against the judgment and decree of Hon. S. Ndegwa SPM delivered on the 18th May 2021 in Githongo SPMC ELC case no. 81 of 2018 and set out the following 12 grounds of appeal.1.The learned magistrate erred in law and fact in that despite finding that the said suit land was a subdivision of L.R No. Abothuguchi/Kariene/59 belonging to M’AJogu Kagitunga the parties’ father, she proceeded to find that the respondents exclusively held the title and that they could deny the appellant a share thereform2.The learned trial magistrate erred in law and fact in that she held there are two instances to challenge title to land being the acquisition of title by fraud or misrepresentation and through a corrupt scheme whereas the appellant’s case was not based on fraud but on breach of trust and his case was properly before the court.3.The learned trial magistrate erred in law and fact in that she failed to find that the respondents’ title deed could be challenged since the same was subject to their holding the land under duty as trustee.4.The learned trial magistrate erred in law and fact in that she held that the appellant did not discharge his burden of proof despite the evidence which was adduced by the appellant and his witnesses.5.The learned trial magistrate erred in law in that despite having analyzed the findings of the Supreme Court of Kenya in the case of Isaack M’inanga Kiebia Vs Isaaya Theuri M’lintari & Another Pet No. 10 of 2015 she proceeded to make a wrong finding that the appellant ought to have led evidence that points to the root of the land.6.The learned trial magistrate erred in law and fact by finding that the appellant sold one of the parcels of land whereas his father sanctioned the sale of the said land during his lifetime and he did not indicate his intention to disinherit the appellant from getting a share from the suit land the same being a resultant subdivision from family land LR No. ABOTHUGUCHI/KARIENE/597.The learned trial magistrate erred in law and fact in that she held that the appellant sold his share of the land given to him by his father and proceeded to find that she believed the records in the land’s office which proved that his father saw the appellant’s actions when no such documentary evidence was availed to court to support such a finding.8.The learned trial magistrate erred in law and fact by finding that the appellant failed to satisfy his burden of proof to show that a trust was created for him despite the appellant’s evidence that he was born and brought up on the land and that all his lifetime he has been living on the suit land.9.The learned trial magistrate erred in law and fact by making extraneous issues that the parties’ parents had transferred their respective portions of land during their lifetime when no such evidence was adduced before the Honourable court.10.The learned trial magistrate erred in law and fact in that she made a finding that there was clear discrimination by the appellant against the respondents since they are married when no such evidence was adduced by the appellant11.The learned trial magistrate further erred in law and fact in that she failed to consider the appellant’s submissions and the judicial authorities thereof which were relevant to the case.12.That the decision of the trial court is against the weight of the evidence and is bad in law.
2.The appellant prays for orders that;a.That this Honourable court do allow the appeal herein.b.That the judgment and decree in Githongo ELC case No. 81 of 2018 be set aside, the court do make a finding that the appellant had proved his case under trust to the required standard and enter judgment in his favour as prayed in the plaint.c.That the costs of this appeal and the lower court be borne by the respondent
B. Background of the Appeal
3.The gist of the case in a nutshell is that vide a plaint dated 16th December, 2010, the appellant stated that the respondents who are his sisters, are currently the registered proprietors of the parcel of family land known as L.R NO. ABOTHUGUCHI/KARIENE/2183 measuring 0.61 Hectares (1.51 acres) or thereabout and that the respondents obtained the title from the appellant’s and the respondents’ father, one M’ajogi Kagitunga who later caused the same to be registered in the name of his wife Joyce Kiecia.
4.The appellant contended that the said parcel of land is ancestral family land (trust land) and the same initially belonged to the appellant and their father M’ajogi Kagitunga who allowed the same to be registered in the name of the appellant’s mother to hold in trust for herself and the family.
5.The appellant contended further that by virtue of the respondents said registration of the family land in their names, the registration gave rise to a trust and the same is protected under section 28 and 30 of the Registered Land Act Cap 300) (now repealed) as the land is ancestral family land and is therefore trust land.
6.The appellant enumerated particulars of trust that the land is family and customary law land and the same initially belonged to the appellant’s father M’ajogi Kagitunga and at the time of registration the same was registered in the names of the appellants grandmother Kangitunga and his son M’ajogi Kagitunga so that the same belonged to the members of his family, that the appellant has been actively utilizing the said land from the time of his father’s lifetime to date, that upon the death of the appellant’s said mother, the respondents caused the said land to be transferred from their mother to themselves, that at all material times, the appellant has been growing coffee and other food crops on the said land with full knowledge of the respondents, family members and the clan elders, that the appellant has a proprietary interest on the said land and he is entitled to inherit the land as it belonged to his father while the respondents have their own properties elsewhere as they are married, that the respondents are now seeking to breach the trust and sell the family land and render the appellant destitute and landless, and that the said land being ancestral land ought to be transferred from one generation of the family to another as per the Kimeru Customary Law, a fact he stated is well known to the respondents as the land does not belong to them.
7.The appellant also enumerated particulars of breach of trust by the respondents to wit failing to recognize the appellants right of active occupation and development on the suit land in spite of the same being of considerable long time, failing to transfer the appellant’s land to him, denying the appellant his right to continue cultivating and growing food crops on the land which as he has all along been doing during his lifetime having been brought up on the said land, causing the land to be transferred to themselves secretly upon the death of their mother, dealing with the land without the consent of the appellant who is inoccupation of the same, failing to respect the customary law norms pertaining to ownership of the said family and trust land, causing the appellant to face unnecessary problems by interfering with his occupation and utilization of the suit land, and failing to disclose to the Land control Board the appellant’s interest on the said land.
8.The appellant further stated that he had continuously utilized and actively occupied the said land LR NO. ABOTHUGUCHI/KARIENE/2183 all his life and during the lifetime of his said mother Joyce Kiagia M’ajogi and father M’ajogi Kagitunga and even after their deaths.
9.The appellant enumerated various developments allegedly undertaken by him on the suit land.
10.The appellant further stated that the respondents intended dealings and their intentions to sell part of the land will deprive him of the land and would amount to breach of trust as the suit land is family land, adding that the appellant’s rights under Section 28 and 30 of the registered land Act (Cap 300) have arisen.
11.It is for the above reason that the appellant prayed for judgment against the respondents jointly and severally for: a declaration that LR no. ABOTHUGUCHI/KARIENE/2183 is ancestral (trust) land and the appellant’s rights of occupation and use of the land has given rise to a trust and the land should be registered in the names of the appellant as the respondents dealing with the suit land alone and their continued refusal to transfer the land to the appellant is in breach of trust and that their names should be cancelled from the registration of the same, orders of inhibition against the suit land, and an order directing the District Land Registrar Meru Central District to cancel the registration of LR. No. ABOTHUGUCHI/KARINE/2183 in the names of the respondents and register the same in the names of the appellant and in default the executive Officer of the court to sign all the requisite transfer documents to effect the transfer thereof to the appellant plus cost and interest.
12.The respondents filed a joint defence dated 25th January, 2011 in which they admitted that they were the registered proprietors of the suit land but denied that the same was family land. They also denied all the averments in the plaint and specifically denied that they wanted to sell the said land and put the appellant to strict proof.
13.The respondents stated that the appellant was given his share of their father’s land and had no business interfering with the respondents’ share.
14.The appeal was canvassed by way of written submissions which were duly filed by both parties on 5th December, 2022 through their respective advocates on record.
C. Appellant’s Submissions.
15.The appellant submitted that it was the trial court’s finding that the suit land was a resultant subdivision from parcel of Land LR NO. ABOTHUGUCHI/KARIENE/59 which belonged to the parties deceased father, M’ajogi Kagitunga, and went ahead to hold that the respondents held the same exclusively for themselves. It is the appellant’s submission that the said finding was without any legal basis at all and that an account of the trial court’s finding that the suit land was registered in the name of M’ajogi Kagitunga who passed it down to his wife Joyce Kiacia M’ajogi who then passed it down to her daughters, then it was only logical to arrive at a conclusion that the said land was a customary trust land which the respondents held in trust for themselves and the appellant. The appellant acknowledged that trust is a question of fact which must be proved by the person alleging its existence by leading evidence and submitted that he led cogent evidence in court to support his claim of the existence of a trust over the suit land.
16.The appellant pointed out that his case was based on the existence of a trust over the suit land and the antecedent breach thereof and cited the provisions of Section 28 of the Land Registration Act which states that:
17.It is the appellant’s submissions that the overriding interests such as, the customary trust existing on the suit land needed not necessarily be noted on the register of the parcel of land. That since the appellant had successfully demonstrated that he was related with the respondents and that the suit land had been passed down their family lineage, the trial court ought to have objectively adjudicated over the appellant’s claim on the existence of trust and ruled in the appellant’s favour.
18.The appellant submitted that he adduced sufficient evidence to show that the suit land was an ancestral family land and that all his witnesses and some of the defense witnesses testified to that effect. The appellant gave an example of Danel Mwirigi who testified as DW 3 when cross examined stated that the suit land was originally registered in the name of the appellant’s grandfather before his father inherited the same and thus it was ancestral land. That also when D.W 1 was cross examined, she stated that the suit land belonged to their father who had inherited the same from their grandfather. It is the appellant’s submission that he discharged the burden of proof as required by law having led in court sufficient evidence to prove that the suit land was ancestral land and that the same was held in trust by the appellant’s sisters on their behalf and the appellant.
19.The appellant’s counsel submitted that the learned magistrate rightly analysed the land mark ruling on customary trusts in the case of Isaack M’inangakiebia Vs Isaaya Theuri M’intari & Another Petition No. 10 Of 2015 and went ahead to still hold that the appellant had not adduced enough evidence to support his claim, which finding he submitted was wrong based on the above decision.
20.It is the appellant’s submission that the trial court’s findings that the appellant had sold his share of bequest from his father was without basis as he only appended his signature as a witness to the sale of land agreement dated 11th April 1995 and submitted that the said sale had been sanctioned by his father as confirmed by Peter Nyakih (P.W 5) who had purchased part of the suit land. The appellant argued that there was no evidence tendered in court to support the trial court’s finding that the land was sold by the appellant. It is the appellant’s submission that the said sale was conducted during the lifetime of the family patriarch M’ajogu Kagitunga and with his full blessing. That the respondents are basically using the same to the appellant’s detriment just because he appended his signature as a witness thereof.
21.The appellant submitted that the issue of alleged discrimination of the respondents and the transfer of part of the suit land during the lifetime of the parties’ parents are extraneous issues which do not have any probative value in this matter. That they are remote and farfetched issues which served nothing but cloud the judgment of the court, and worked in favour of the respondents since it switched the gender card to their advantage. The appellant denied discriminating against the respondents but stated that he just seeks to have what is rightly his and his birth right for that matter. That he does not have any problem sharing the same out with the respondents since they are equally entitled to inherit from their father’s estate, their gender notwithstanding.
22.The appellant urged the court to find in his favour and set aside the judgment and decree entered in the lower court and find that the appellant had proved his case on the existence of a trust over the suit land and enter judgment in his favour.
D. Respondents’ Submissions
23.The respondents submitted that it is clear from the pleadings, evidence and testimony on record that they are the registered proprietors of the suit land and cited Sections 24 (a) and 26 of the Land Registration Act. That the respondents obtained a good title by following due process to the required standards in statute and case law and relied on the case of Simon Njoge Vs Simon Gatimu Kanyi eKLR in which the Court of Appeal held as follows-;
24.The respondents’ submissions is that trust is an overriding interest that subsists on the land and is binding on the land. That the party alleging trust on land bears the onus or the burden of proof of the existence of trust.
25.The respondents submitted that the appellant made general allegations of trust and did not specifically plead the type of trust that exists, whether it is constructive trust or customary trust or otherwise. That each type of trust have to be proved independently with different parameters as set out in the case of NWK V JKM and another eKLR, Moses Kariuki Wachira Vs Joseph Murithi Kanyita and 3 others  eKLR. The respondents also relied on the case of Isack M’Inanga Kieba Vs Isaya Theuri M’lintari and Isack Ntongai M’Lintari SCOK Petition No. 10 Of 2015.
26.The respondents submitted that they are alive to the provisions of Section 126 (1) of the Registered Land Act Cap 300 Laws of Kenya ( repealed) which provided that;
27.It is further submitted by the respondents that for the appellant to succeed, the court must be convinced that the appellant has proved that the suit land is held in trust for him. That the basis upon which the appellant alleges that the suit land is held in trust is the claim that the suit land is their ancestral land. That only in case of absolute necessity that the court may presume a trust, which presumption is not arrived at easily. That the courts will not imply a trust save in order to give effect to the intention of the parties to create a trust which must be clearly determined before a trust is implied.
28.The respondents submitted that it is trite law that where a trust is claimed, then the person(s) claiming the trust needs to lead evidence to demonstrate the type of custom they are relying upon then if it arose out of customary law, lead evidence of such customary law and how it creates a customary trust. That a claim of trust must always be supported by solid evidence and it is not enough to merely plead ancestral land as the appellant herein has done. The respondents relied on Civil Appeal No. 189 of 1995 – Muriuki Marigi Vs Richard Marigi Muriuki & 2 others where it was held that;
29.The respondents submitted that they appreciate that trust can never be implied by the court unless there was intention to create one in the first place. They relied in the case of Peter Ndungu Njenga Vs Sophia Watiri Ndungu  eKLR where the court held that he who alleges must prove. That the burden of proving that the suit land is held in trust by the respondents is on the part of the appellant.
30.It is the respondents’ submissions that no evidence was placed before the court that would support a ground of absolute necessity. That there is absolutely neither documentary evidence nor any document indicating that the respondents were appointed by their parents to hold the land in trust for the appellant. That none of the appellant’s witnesses witnessed the respondents being given the suit land to hold in trust, and submitted that the entire case of the appellant was based on assumption. The respondents submitted that the court should find that there is no trust envisaged in this case.
31.The respondents pointed out that it is worth noting that the appellant himself requested that his portion of inheritance which was excised from L.R no. ABOTHUGUCHI/KARIENE/59 now land reference Number ABOTHUGUCHI/KARIENE/2182 and land reference Number ABOTHUGUCHI/KARIENE/2183 be transferred to one Peter Kirunguru since he had exchanged the same for land Reference Number ABOTHUGHCI/RIUIGA/1241.
32.The respondent submitted that land reference No. ABOTHUGUCHI/KARIENE/2183 was transferred to the respondent’s mother one Joyce Kiacia but upon the demise of the father of the parties herein, the appellant started harassing their mother to transfer the land to him and as a result of the appellant’s hostile behavior towards the mother, their caused the said land to be transferred to the respondents.
33.The respondents submitted that the truth is that the appellant got his share of inheritance and he is using the court process to disinherit the respondent their rightful share of inheritance on mere grounds that they are married sisters by using the doctrine of trust.
34.It is the respondents’ submission that for there to be a trust the same must be clear, that the person is granted the alleged property to hold on behalf of others, but not on his own behalf. It is their further submission that from the evidence tendered before the trial court, the appellant did not prove his case on a balance of probabilities.
35.The respondents stated that for the trial court to hold that there was a trust, the court would have needed much more than the mere allegation that the suit land is ancestral land and that the relationship of sisters and brothers or family by itself without anything more cannot be said to automatically raise the presumption of trust. The respondents submitted that the suit parcel of land LR. NO. ABOTHUGUCHI/KARIENE/2183 belongs to the respondents and the same is not held in trust for the appellant or anyone else.
36.The respondents concluded by submitting that the trial magistrate’s decision was wise and sound and it is well anchored in statute law and case law and they prayed that the court ought not to disturb the said judgment. They submitted that the appeal is not merited and should be dismissed with costs to the respondents.
E. Analysis and Determination
37.I have considered the record of appeal, the grounds of appeal and the submissions by the parties. This being a first appeal, I am conscious of the court’s duty and obligation to evaluate, re-assess and re-analyse the evidence on record to determine whether the conclusion reached by the learned magistrate were justified on the basis of the evidence presented and the law. The issues for determination in this appeal as I can deduce from the grounds of appeal are;i.Whether the existence of trust over the suit land had been proved.ii.Whether the decision of the learned trial magistrate is against the weight of the evidence and the law.iii.Whether the appeal is merited.
Whether the existence of trust over the suit land had been proved
38.It is not in dispute that the appellant and the respondents herein are related by virtue of being a brother and sisters. The respondents are the registered proprietors of the parcel of land known as LR. NO. ABOTHUGUCHI/KARIENE/2183. The respondents acquired title from their mother Joyce Kiecia who in turn had acquired it from the parties’ father, M’Ajogi Kagitunga. Both parents are deceased.
39.The appellant’s case was that the suit land is ancestral land which originally belonged to their grandfather before the same was registered in the names of their father and later their mother. The appellant’s claim was that the respondents are holding the said land in trust on their own behalf and on behalf of the appellant. On their part, the respondents argued that the appellant was given his share of their father’s land which he transferred to one Peter Kirunguru Nyakih in exchange for parcel No. ABOTHUGUCHI/RUIGA/1241. That a portion of the original land ABOTHUGUCHI/KARIENE/59 now the suit land L.R NO. ABOTHUGUCHI/KARIENE/2183 was transferred to the parties’ mother to hold the same in trust for the respondents and caused the same to be transferred to the respondents. The respondents therefore deny that they are holding the land in trust for appellant as claimed by the appellant.
40.Both parties appreciate the law governing customary trust and they cited Isack M’Inanga Kiebia Vs Isaaya Theuri M’Linturi & another ( supra) in which the Supreme Court held as follows:
41.It is trite that customary trust must be proved by way of evidence. From the evidence on record, the appellant testified that their father’s land was originally land Parcel ABOTHUGUCHI/KARIENE/59 before it was subdivided. The appellant produced a copy of the register for LR. NO. ABOTHUGUCHI/KARIENE/59 as an exhibit. The documents produced by the appellant also indicates that Parcel No. ABOTHUGUCHI/KARIENE/59 was closed on 2nd May 1995 upon subdivision into parcel No. 2181, 2182 and 2183.
42.Among the documents on record is an agreement for sale dated 11th April 1995 between M’Ajogi Kagitunga (deceased) as vendor and Peter Kirunguru Nyaki as purchaser in which the two parties exchanged their parcels number ABOTHUGUCHI/KARIENE/2183 and ABOTHUGUCHI/RUIGA/1241. However, in the said agreement, Peter Kirunguru Nyakih was to transfer his land parcel ABOTHUGUCHI/RWIGA/1241 to the appellant herein and in addition pay him a further consideration of kshs. 30,000/=. It appears that parcel number 2183 was never transferred into the name of Peter Kirunguru Nyakih as per the agreement. Instead, the evidence on record shows that parcel Nos 2181 and 2182 were transferred to the said Peter Kiruguru Nyakih and titles issued to him on 26th August 1995 and 28th August 1995 respectively. The evidence on record further shows that parcel No. 2141 was transferred to the appellant and title issued to him on 2nd May 1995.
43.What is not in dispute is that the suit land parcel No. ABOTHUGUCHI/KARIENE/2183 was transferred by the parties’ deceased father to their mother (who is also deceased) who transferred it to the respondents herein. In light of the foregoing, it is clear that the suit land, together with the other subdivisions were originally the property of parties’ deceased father and therefore may be regarded as ancestral/family land. However, what has emerged from the material on record is that the original owner of the suit land subdivided and shared out the same when he was alive. In my opinion, the deceased as the registered owner of the original land had the right to subdivide and distribute the same as he wished. The owner, while still alive had control over his land and whoever was gifted by the owner could not be regarded as holding the same in trust for other, unless expressly stated. From the evidence on record, it is clear that during his lifetime, the deceased subdivided his land and gifted some portions to the appellant and another portion to his wife who later gifted her portion to the respondents herein. These gifts were done inter vivos and I do not think that any trust was intended. In any case, the appellant was also a beneficiary of two parcels which he sold and or exchanged with other parcels. The court did not hear the appellant say that he was also holding those other parcels in trust for the respondents. What has emerged from the evidence and material on record is that the original owner of the suit land subdivided his land and shared out the same to his children and wife.
44.The evidence on record is also clear that the appellant exchanged his share with land reference No. ABOTHUGUCHI/RUIGA/1241 and even received part of the consideration in form of cash. In my view, the appellant could not again claim that land parcel No. ABOTHUGUCHI/KARIENE/2183 was held in trust for him and the respondents, and not the other parcels No. 2181 and 2182 which it is apparent went to the appellants exclusively. It is evident from the material on record that the original owner who is the parties’ deceased father had during his lifetime subdivided his land and shared it out to all the parties herein. In my view, the claim of trust by the appellant over only one portion could not succeed. It is my finding that the appellant failed to discharge his burden of proof as rightly founded by the trial court since their parents had shared out the land and transferred respective portions to their children and there was no indication that any of the parcels including the suit land was to be held in trust by any of the parties. The evidence on record indicates that the respondents were duly registered as proprietors of the suit land and obtained good title from their deceased parents following due process.
Whether the decision of the learned trial magistrate is against the weight of the evidence and the law and whether the appeal is merited
45.From the findings of the court that the appellant never proved trust in the suit land, the same having been shared out to the parties by their deceased father during his lifetime, it is my finding that the decision of the trial court was justified in the circumstances of this case. In my view, the learned magistrate fully addressed his mind to the issues raised in the suit and arrived at a well -reasoned judgment. The trial court in particular considered how the respondents obtained registration of the suit land. In my view, the acquisition of the suit land by the respondents was lawful and could not be impeached in any way. The evidence on record demonstrate that the respondents’ title was acquired legally and procedurally and the respondents are the bonafide registered owners of the property. As bonafide registered proprietors of the property, the respondents are therefore protected under the provisions of Article 40 of the Constitution and Section 23, 24 and 26 of the Land Registration Act. The findings and holdings of the learned trial magistrate were well founded and I find no basis to interfere with the same.
46.In the result, I find no merit in the appellant’s appeal and the same is hereby dismissed with costs to the respondents.