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Court of AppealDismissedCivil Appeal No. E202 of 2024

Marion Nyakairu Runo & Another v Jasan Ndungu Runo

Court of Appeal
25 September 2026
3,128 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that ancestral land carries a customary trust that survives registration and blocks a father from gifting the entire land to some children.

What this practically means

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Executive summary

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This is a first appeal against the judgment of the Environment and Land Court at Nyeri (Olola J) which cancelled the registration of L.R No. Thegenge/Ihithe/542 in the names of the appellants and ordered rectification of the register to revert ownership to their late father, Runo Mukunu Njagi. The parties are siblings. The appellants claimed their father gifted the suit property to them jointly as a gift inter vivos and allocated the respondent alternative land at Matanya; the respondent counterclaimed that the land was ancestral land on which he had lived since 1954, built a home, cultivated tea and bananas, and buried his daughter, and that the appellants procured registration through fraud. The trial court found the land was ancestral, that registration did not extinguish customary rights, and that the respondent's long possession created an overriding interest. The Court of Appeal framed three questions: whether a customary trust was pleaded, whether it was established, and whether the gift inter vivos extinguished it. The court held the counterclaim's averments about ancestral land and clan norms sufficiently pleaded a customary trust. Applying the Supreme Court's elements in Isack M'inanga Kiebia v Isaaya Theuri M'lintari, it found the respondent proved a customary trust on a balance of probabilities. It further held that because the father's title was burdened by that overriding trust under section 28 of the Land Registration Act, he lacked unilateral authority to gift the entire property to the exclusion of the respondent; the gift, even if registered, was secondary to the trust. The appeal was dismissed with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the issue of a customary/constructive trust was pleaded before the trial court
  2. 2.Whether a customary trust existed in relation to the suit property
  3. 3.Whether the suit property was properly alienated as a gift inter vivos and, if so, whether such a gift extinguishes the customary trust

Key legal issues

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01

Whether a customary trust was pleaded

Holding

The counterclaim's averments that the land was ancestral and occupation was subject to clan and ancestral land norms amounted to a claim of customary trust.

Reasoning

The court examined the face of the counterclaim, which pleaded long occupation and development by virtue of being a son and clan member, that the parcel was ancestral land handed down by transmission, and that occupation was subject to clan and ancestral land norms. These averments sufficiently raised a customary trust claim, so the trial judge did not err in considering it.

p. 15
02

Whether a customary trust was established

Holding

The respondent proved on a balance of probabilities that the father held the suit property subject to a customary trust in favour of his household.

Reasoning

Applying the Isack M'inanga Kiebia elements, the land was ancestral, passed from grandfather to father, the parties are siblings, and the respondent's permanent house and burial of his daughter on the land evidenced continuous possession and occupation. The court agreed with the ELC that the property was ancestral land.

p. 22
03

Whether the gift inter vivos extinguished the customary trust

Holding

No. The father's title was already burdened by the overriding customary trust, so he lacked absolute unilateral authority to gift the entire property to the exclusion of the respondent.

Reasoning

Under section 28 of the Land Registration Act, trusts including customary trusts are non-registrable overriding interests. Because the father's title was burdened by a customary trust in favour of his household, he could not gift away the entirety of the property to the complete exclusion of the respondent who had established permanent settlement for decades.

p. 20

Legal principles established

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  • A customary trust is a non-registrable overriding interest that runs with the land and burdens the registered proprietor's title.
  • A proprietor whose title is burdened by a customary trust cannot gift away the entirety of the land to the exclusion of beneficiaries of the trust, even by registered transfer.
  • Parties are bound by their pleadings and a court will not determine unpleaded issues.

Court orders

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  1. 1.Appeal dismissed with costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Environment and Land Court at Nyeri
ELC Civil Case No. 254 of 2013
Jurisdiction invoked
First appeal under rule 31 of the Court of Appeal Rules, 2022

Relief refused

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Appellants' appeal against cancellation of title and rectification of the register

No basis to interfere with the trial judge's evaluation of evidence and application of the law

p. 22

Costs

The appeal is dismissed with costs to the respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The upshot is that we find no basis upon which to interfere with the learned judge’s evaluation of evidence and application of the law. As a result, the appeal is dismissed with costs to the respondent.
p. 22Final orders - dismissal of appeal
A customary trust is a non-registrable right which runs with the land and is considered to be an encumbrance on land.
p. 15Nature of customary trusts
This Court therefore finds that the alleged gift inter vivos, even if registered, is secondary to the overriding customary trust.
p. 22Gift inter vivos vs customary trust
In an adversarial system such as ours, parties to litigation are the ones who set the agenda, and subject to rules of pleadings, each party is left to formulate its own case in its own way.
p. 13Parties bound by pleadings

Issues in the judgment

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minor

Inconsistent case number for the trial cause

minor

Hearing date of 28th April 2026 precedes memorandum of appeal dated 6th November 2024 but judgment delivered 25th September 2026

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Marion Nyakairu Runo & Another v Jasan Ndungu Runo", Case Analysis (2026). Civil Appeal No. E202 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1863/eng@2026-09-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.