Marion Nyakairu Runo & Another v Jasan Ndungu Runo

2013, the appellants alleged that their father was the sole Page 2 of 13

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registered proprietor of the suit property and that, before his death, he distributed his properties and gifted the suit property to the appellants jointly as a gift inter vivos. 3. The appellants further pleaded that their late father simultaneously allocated an alternative parcel, Laikipia/Tigithi Matanya Block 3/393 (Matanya center) measuring 1.40 hectares to the respondent herein. They alleged that their father issued the respondent a formal demand notice dated 4th August 2013 requiring him to vacate the suit property, and the respondent responded on 9th September 2013 through his advocate, requesting for a 3-year grace period. The request was declined and he was asked to vacate by 5th November 2013. The respondent, however, refused to vacate the portion of the suit property he occupied. 4. The appellants’ main prayer before the ELC was therefore an order requiring the respondent to vacate the suit property, failing which the issuance of a forcible eviction order would follow. The appellants also sought an order of mesne profits assessed at Kshs 5,000/- per year from the date of filing suit until the yielding of vacant possession. There was also a prayer for costs. 5. The respondent, in opposition to the appellants’ claim, filed a statement of defence and counterclaim dated 16 th January 2014. He denied that his late father had allocated him the parcel of land in Matanya or that he had agreed to vacate the suit property. He asserted that the Matanya property belonged to the entire family, while the suit Page 3 of 13

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property was Page 4 of 13

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ancestral land inherited by his father from his grandfather. The respondent stated that he resided on the suit property since his birth in 1954, constructed a home thereon for his immediate family comprising himself, his wife and 6 children who live there; planted 1,000 tea bushes and bananas, and had buried his deceased daughter on the land. 6. The respondent pleaded that the appellants acquired the title through fraud and illegality by taking advantage of their father’s alleged ill-health to alter land records, obtaining consent of the Land Control Board without family approval, and subsuming his possessory interest and surpassing traditional norms on ancestral land. The respondent prayed for cancellation of the registration of the suit property in the names of the appellants and rectification of the register to revert ownership to the late Runo Mukunu Njagi. 7. In the Environment and Land Court, the appellants called two witnesses: PW1, Rachel Nyamugu Runo, the mother of the parties, who adopted her witness statement dated 4th February 2014. She testified that the suit property was initially registered in her late husband’s name and was ancestral land, inherited from his father. She testified that on 18th August 2013, her husband convened a family meeting to share out his properties, and he gifted the suit property to the appellants, while the respondent was allocated the Matanya parcel. His other sons were allocated land in Kieni West. Page 5 of 13

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8. On cross-examination, she testified that the respondent was born on the land in 1954, had built a house at the edge of the property, and had buried his deceased daughter there. 9. The 1st appellant testified as PW2, she adopted her witness statements of 18th December 2013 and 4th February 2014. She testified on the family meeting, stating that the respondent refused to attend due to bad blood between him and their father. She testified that their father was mentally sound when he made the gifts. On crossexamination, the witness testified that the suit property was ancestral land, that the respondent had built his house in 2001 with their father’s permission, and that he had been given 300 tea bushes to tend, but maintained that he had been allocated alternative land in Matanya. 10. The respondent testified as DW1 and the sole witness in his case. He stated that he was born on the suit property in 1954, and had lived there all his life, built a permanent residence, and cultivated tea and bananas on the said parcel of land. The respondent denied that his father ever called a family meeting in August 2013 or asked him to move to Matanya, maintaining that the Matanya parcel was family property. He stated that he placed a caution on the suit property after learning of attempts to alter the register and claimed his siblings took advantage of their father’s ill health. 11. Upon considering the respective cases of the parties, the trial court found that the suit property was ancestral land Page 6 of 13

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and that registration of the land did not extinguish Page 7 of 13

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subsisting customary rights. The court held that long possession, residence and developments by the respondent created an overriding interest over the suit property. Consequently, the trial court ordered cancellation of the registered title in the name of the appellants and rectification of the register. 12. Aggrieved by the decision of the trial court, the appellant filed a memorandum of appeal dated 6 th November 2024 contending that the learned trial judge erred in law in three respects, namely; in finding that the gift inter vivos formed ancestral land; in canceling the proprietary rights of the appellants; and in finding that a proprietor could not gift his free land in his lifetime. 13. The appeal before us was heard on 28 th April 2026. Mr. Muchangi Onamu, learned counsel, appeared for the appellants, while Mr. Magwa, learned counsel, appeared for the respondent. Both parties had filed written submissions and accompanying lists/digests of authorities, and each counsel made oral highlights of the submissions on record. 14. The appellants submit that under sections 24 and 25 of the Land Registration Act, 2012, their father held absolute ownership and full legal authority to gift his land during his lifetime. The perfected transfer extinguished any underlying trust, particularly since the respondent was allocated alternative land in Matanya. 15. The appellants distinguished the Supreme Court decision in Isack M’inanga Kiebia v Isaaya Theuri M’Lintari Page 8 of 13

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[2018] Page 9 of 13

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KESC 22 from the present case, contending that the Supreme Court decision concerned rights at first registration of trust land whereas in their case, the land had long been registered in the deceased’s name. The appellants submit that although the decision held that customary rights are not extinguished by registration, they remain subject to proof and lawful dispositions by the trustee/proprietor. 16. The appellants took issue with the trial court’s reliance on this Court’s decision in Mbui Mukangu v Gerald Mutwiri Mbui [2004] eKLR where a father sought eviction of his son from ancestral land without having executed a transfer to third parties or allocated alternative land. They submit that the case is distinguishable from their case as their late father transferred land to the appellants after allocating alternative land to the respondent. 17. Counsel further submit that the trial judge erred by cancelling title on the unpleaded ground of an overriding customary trust when the respondent had specifically pleaded fraud, which he failed to prove to the required high standard. The appellants place reliance on the cases of Kinyanjui Kamau v George Kamau Njoroge [2015] eKLR and Christopher Ndaru Kagina v Esther Mbandi Kagina [2016] eKLR) and Raila Odinga & Others v Independent Electoral and Boundaries Commission & Others [2017] eKLR in support of this submission. 18. It was submitted for the respondent that the trial court Page 10 of 13

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correctly applied this Court’s Mbui Mukangu and the Page 11 of 13

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Supreme Court’s Isack M’inanga Kiebia decisions (supra), which established that customary trusts constitute overriding interests under section 28 of the Land Registration Act, arising from possession for a long time and actual occupation. 19. Regarding the pleadings, counsel for the respondent submitted that he explicitly pleaded in paragraph 2 of his counterclaim that the land was ancestral, and therefore the finding of a customary trust was supported by the pleadings and evidence. 20. Mr. Magwa conceded that the record did not contain the initial land registration documents showing how the property was first registered. However, he urged the Court to rely on the oral admissions of PW1 and PW2 that the respondent had resided there since his birth in 1954. 21. This is a first appeal and under the provisions of rule 31 of the Court of Appeal Rules, 2022, we are under a duty to re-appraise the evidence and to draw inferences of fact, a duty that is also encapsulated in the case of Selle & Another v Associated Motor Boat Co. Limited [1986] EA 123. 22. Having carefully considered the memorandum of appeal, the record, the written submissions and oral highlights, we are of the view that the appeal turns on three inter-related questions: the first is a technical point relating to whether the issue of a constructive trust was pleaded before the trial court; the second issue is based on the existence of a Page 12 of 13

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customary trust, and the third is whether the suit property was properly alienated as a gift inter vivos and, if so, whether such a gift extinguishes the customary trust. 23. This court has previously held that parties are bound by their own pleadings, and further, that a court will not determine issues which the parties have not pleaded. In David Sironga Ole Tukai v Francis Arap Muge & 2 others [2014] KECA 155 (KLR) this court extensively dealt with the issue of an unpleaded issue and stated as follows; “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. It is for this purpose that each party is bound by its own pleadings. For this very reason, a party cannot be allowed to raise a different case from that which it had pleaded without due amendment being made. That way, none of the parties is taken by surprise at the trial, as each knows the other’s case as pleaded.” 24. The appellants’ position on this matter is that the respondent failed to plead the issue of customary trust. Looking at the face of the counterclaim, the respondent pleaded the following; i. The defendant avers that he has been in occupation and has extensively developed at least 1 ½ acres of Thegenge/Ihithe/542 from 1954 to date by virtue of being a son and a clan member in his clan. The said Page 13 of 13

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parcel of land is ancestral land which was handed Page 14 of 13

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down to the defendant’s father by way of transmission in 1987. ii. The defendant further avers that his occupation, development and stay have been with tacit and implicit instruction of his parents, subject to the norms pertaining to clan and ancestral lands 25. This, in our view, was a claim regarding the existence of a customary trust, and we find that the trial judge was not out of order to have considered the same. 26. Having found that a customary trust was pleaded, we will now turn to the central question as to whether existence of a customary trust in relation to the suit property was established. 27. We have considered the evidence tendered and, based on the record before us, the familial relationship is common ground. The appellants and the respondent are siblings, and the suit property was family property. There is also no dispute that the respondent was married and settled with his family on the same land, and that he had also buried his deceased daughter on the property. It is also common ground that the suit property was registered under their father’s name, Runo Mukunu Njagi. It is, however, trite that where a trust for the benefit of others exists, the registration of a person as a proprietor of land does not relieve him of his duty as a trustee. A customary trust is a non-registrable right which runs with the land and is considered to be an encumbrance on land. (See the case of Kanyi v Muthiora (1984) KLR 712). Page 15 of 13

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28. Additionally, section 25 of the Land Registration Act recognizes overriding interests in registered to land, including trusts. It provides: “1. The rights of a proprietor, whether acquired on first registration or subsequently for valuable consideration or by an order of Court, shall not be liable to be defeated except as provided in this Act, and shall be held by the proprietor, together with all privileges and appurtenances belonging thereto, free from all other interests and claims whatsoever, but subject a) to the leases, charges and other encumbrances and to the conditions and restrictions, if any, shown in the register; and b) to such liabilities, rights and interests as affect the same and are declared by section 28 not to require noting on the register, unless the contrary is expressed in the register. 2. Nothing in this section shall be taken to relieve a proprietor from any duty or obligation to which the person is subject to as a trustee.” 29. In proving a customary trust, the legal burden of proof rested squarely on the respondent. The elements to be established in a claim of customary trust were set out by the Supreme Court in Isack M’inanga Kiebia v Isaaya Theuri M’lintari & another, [2018] KESC 22. These considerations, as enunciated by the Supreme Court, are Page 16 of 13

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whether: Page 17 of 13

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i. The land in question was, before registration, family, clan or group land. ii. The claimant belongs to such family, clan, or group iii. 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. iv. The claimant could have been entitled to be registered as an owner or other beneficiary of the land but for some intervening circumstances. v. The claim is directed against the registered proprietor who is a member of the family, clan or group. 30. In the instant case, the parties before us are siblings. It appears from the evidence that the suit property was passed down to their father, Runo Mukunu Njagi, by his father, who is the grandfather of the parties herein. This was the testimony of PW1, Rachel Nyamugu Runo, the mother of the parties before us. This devolution of land from a grandfather to a father is a clear manifestation of age- old land tenure system which preserved intergenerational equity where land is held by one generation for the benefit of succeeding generations. 31. Further, the realities on the ground, such as the respondent’s construction of a permanent house and the interment of his deceased daughter on the land, provide evidentiary anchors of continuous possession, use and occupation within the already demonstrated customary trust. The Supreme Court in Isack M’inanga Kiebia v Isaaya Theuri M’lintari & another (supra) noted that a customary trust can materialize where evidence emerges that parts of the land were reserved for family or clan use, Page 18 of 13

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such as Page 19 of 13

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burials, construction of houses and other amenities, and so on. 32. Each case has to be determined on its own merits and weight of evidence. In this regard, we agree with the Environment and Land Court and find that the suit property was indeed ancestral land. 33. The appellants argued that their late father alienated the suit property to them as a gift inter vivos during his lifetime and unencumbered that this title grants that them extinguishes an absolute, any alleged customary trust as the suit property was subsequently registered under their names. 34. Under section 28 of the Land Registration Act 2012, however, trusts, including customary trusts, are recognized as non-registrable overriding interests. The provision states as follows: “28. Unless the contrary is expressed in the register, all registered land shall be subject to the following overriding interests as may for the time being subsist and affect the same, without their being noted on the register a) deleted by Act No. 28 of 2016, s. 11(a); b) trusts including customary trusts c) …” 35. Because the father’s title was already burdened by an overriding customary trust in favour of his household, we find that he did not possess the absolute unilateral authority to gift away the entirety of the suit property to Page 20 of 13

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the Page 21 of 13

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two children to the complete exclusion of the respondent who had already established permanent settlement thereon for decades. This Court therefore finds that the alleged gift inter vivos, even if registered, is secondary to the overriding customary trust. 36. Considering the evidence as a whole, we are satisfied that the respondent proved, on a balance of probabilities, that Runo Mukunu Njagi held the suit property subject to a customary trust in favour of his household. We find no fault in the trial court’s finding that the appellants did not have any better rights to the suit land than the right held by the respondent over the same. 37. 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. Orders accordingly. Dated and delivered at Nyeri this 25th day of September, 2026 MUMBI NGUGI .......................... ... JUDGE OF APPEAL L. ACHODE ………………..….. JUDGE OF APPEAL PAUL LILAN …………….…..….. JUDGE OF APPEAL I certify that this is a true copy of the Page 22 of 13

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original Signed DEPUTY REGISTRAR Page 23 of 13

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