Njoroge v Njoroge (Environment and Land Appeal E064 of 2024) [2026] KEELC 3757 (KLR)
The bottom line
#A Kenyan grandmother won her appeal: her grandson holds family land subject to a customary trust protecting her daughters' inheritance rights.
What this practically means
#Executive summary
#Key legal issues
#Whether a donatio mortis causa was established
Not established; PW1 conceded there was no evidence the transfer was made in contemplation of death, which was fatal to that limb
The Court held the requirements of Section 31 of the Law of Succession Act are conjunctive. PW1's own admission that there was no evidence of contemplation of death was dispositive. Passage of seventeen years, the Respondent's residence on the land, and inability to cure the concession with Section 62 of the Evidence Act all weighed against the claim. The magistrate's reliance on English authority was criticised but did not vitiate the finding.
Whether a customary trust existed over Ndumberi/Tinganga/2287
Yes; the trial magistrate erred in demanding documentary proof and in assuming daughters were excluded by marriage; a customary trust in favour of the Appellant's daughters was declared
Relying on Section 28(b) LRA and the Supreme Court's principles in Isack M'inanga Kiebia v Isaaya Theuri M'lintari, the Court found the family land, the close family relationship, the donor's continued occupation and the Respondent's peaceful acquiescence consistent with a customary trust and inconsistent with an absolute transfer. Discriminatory exclusion of married daughters offends Article 27.
Whether the trial magistrate's orders for partition and permanent injunction were proper
Improperly granted; the partition order affected a non-party co-owner without a hearing, and the injunction was not pleaded in the terms granted
Elizabeth Wanjiru Njoroge, a registered co-owner, was not joined; an order compelling subdivision of her property violated natural justice and was set aside for want of jurisdiction. The permanent injunction against the Appellant offended the principle that courts are bound by the reliefs pleaded.
Legal principles established
#- Customary trusts are non-registrable overriding interests under Section 28(b) of the Land Registration Act which bind registered land without notation on the register
- Indefeasibility of title under Section 26 of the Land Registration Act is subject to overriding interests and cannot defeat a customary trust
- A valid donatio mortis causa under Section 31 of the Law of Succession Act requires conjunctive proof of contemplation of death, delivery, and reversion
- A court order affecting a non-party's rights without a hearing violates natural justice and is null and void
Court orders
#- 1.The appeal is allowed in part
- 2.The finding of the trial magistrate that the suit property Ndumberi/Tinganga/2287 was transferred to the Respondent as an absolute gift inter vivos is set aside
- 3.It is declared that the Respondent holds his interest in land parcel Ndumberi/Tinganga/2287 subject to a customary trust in favour of the daughters of the Appellant, as an overriding interest within Section 28(b) of the Land Registration Act, and subject to Sections 24 and 26 of the same Act
- 4.The order of the trial magistrate directing partition of the suit property into two equal portions is set aside for want of jurisdiction, having been made without affording a hearing to Elizabeth Wanjiru Njoroge, a registered co-owner and necessary party
- 5.The permanent injunction issued by the trial magistrate restraining the Appellant is set aside
- 6.The Respondent and Elizabeth Wanjiru Njoroge are restrained from selling, charging, transferring or otherwise alienating the suit property in a manner prejudicial to the customary trust interests of the Appellant's daughters
- 7.The Appellant is at liberty to remain in occupation of the suit property pending resolution of the beneficial interests of all the Appellant's daughters
- 8.Each party shall bear their own costs of the appeal
- On appeal from
- Principal Magistrate's Court
- Not stated in the judgment
- Jurisdiction invoked
- First appellate jurisdiction under Order 42 Rule 32 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Njoroge v Njoroge (Environment and Land Appeal E064 of 2024) [2026] KEELC 3757 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3757/eng@2026-06-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.