Alice Acuii Nguthari & another v Joseph Kobia Nguthari & 2 others

probate and administration proceedings in respect of the estate of the deceased by the lawful beneficiaries. ii. An Order of permanent injunction restraining the 1 st defendant, his agents or servants from evicting or in any way interfering with the plaintiffs and their family settlement on LR NO. KIEGOI/KINYANKA/645 (now subdivided into LR NO. KIEGOI/KINYANKA/2295, 2296, 2297 and 2298. iii. In the alternative, a declaration that the original LR NO. KIEGOI/KINYANKA/645 plus the resultant subdivisions is subject to customary trust which the plaintiffs are entitled to a share iv. Costs of the suit and interests. 3. Upon being served with the plaint, the 1st respondent lodged his statement of defense dated 8th march 2021 denying the allegations by the appellant and maintained that his father, one M’nguthari Thuranira M’kaibunga, now deceased had transferred to property to him before his death. Besides, he contended that he had sued his father vide MERU CMCC NO. 138 OF 1993 whereby the suit was compromised vide a letter of consent. On the other hand, the 2 nd and 3rd respondents did not lodge any pleadings and/or documents upon being served with both the plaint and the amended plaint thus the suit proceeded without their participation. 4. Subsequently, the parties herein particularly the appellants and the 1 st respondents called their respective witnesses whereby the Appellants called PW1 and PW2 and produced P EXH 1-8 while the 1 st respondent called one witness and produced D EXH 1-15. The parties lodged their various written submissions and, on the 22nd April 2026, the judgement Page 2 of 33

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was delivered whereby the suit was dismissed with each party bearing own costs. 5. The appellants were dissatisfied with the trial court’s findings; and thus thus lodged the instant appeal for consideration. On the 8 th July 2026, the parties herein appeared before the honorable court whereby it was directed that the instant appeal be canvassed by way of written submissions 6. Having reviewed the record of appeal, the pleadings by the parties, the evidence tendered, both oral and documentary, the written submissions and upon taking into account the applicable law, I come to the conclusion that three [3] issues crystallize for determination. 7. The issues are: i. Whether the allegation of fraud was proved; ii. Whether the Appellants proved the plea of customary trust to the requisite standard or otherwise; iii. Whether the Learned Trial Magistrate misapprehended and misapplied the law as pertains to customary trust or otherwise. 8. Before venturing to address the thematic issues that have been isolated in the preceding paragraph, it is important to highlight that what is before me is a first appeal. By virtue of being a first appeal, this court is mandated to undertake a fresh and exhaustive scrutiny, review, and analysis of the totality of evidence tendered before the court of first Page 3 of 33

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instance. The court is obligated to review the evidence and determine whether the finding and conclusion arrived at by the trial magistrate accord with the evidence on record and the legal principles. 9. The court is seized of the authority and jurisdiction to arrive at an independent conclusion and to depart from the findings of the trial court. However, it is established that the appellate court can only depart from the factual finding and conclusion of the trial court where it is demonstrated; that the conclusions were based on no evidence; the conclusions are perverse to the evidence on record; the findings are based on misapprehension of the evidence and law; and that there is a demonstrable error of principal which vitiates the findings of the trial court. 10.Suffice it to state that, barring the foregoing, the first appellate court is enjoined to defer to the findings and conclusions of the trial court. Notably, the jurisdiction of the first appellate court to interfere with the findings/conclusions of the trial court is circumscribed. The jurisdiction is not at large. In addition, the jurisdiction is not to be exercised at will, or for the mere asking. More importantly, section 78 of the Civil Procedure Act, regulates its exercise. 11.The jurisdictional remit of the first appellate court, while undertaking its mandate as pertains to the first appeal, has been the subject of various court decisions. In the case of Odera t/a AJ Odera & Associates v Machira t/a Machira & Co Advocates [2013] KECA 208 (KLR). The Court of Appeal expounded on the scope of the jurisdiction. Page 4 of 33

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12.The court stated thus “46. We also wish to be guided by the reasoning of this court in the case of Mwana Sokoni versus Kenya Business Limited (1985) KLR 931 page 934,934 thus:-“Although this court on appeal will not lightly differ from the Judge at first instance on a finding of fact, it is undeniable that we have the power to examine and re-evaluate the evidence on a first appeal if this should become necessary. As was said by the House of Lords in Sottos Shipping versus Sauviet Sohold, The Times, March 16, 1983.“It is uncertain whether their Lordships should have reached the same conclusion on the evidence, but it is important that, sitting in the appellate court they should be over mindful of the advantages enjoyed of the trial Judge who saw and heard the witnesses and was in a comparably better position than the Court of Appeal to assess the significance of what was said, how it was said, and equally impotent what was not said” Again in Peters versus Sunday Post Limited (1958) EA424, a decision of the Court of Appeal for Eastern Africa, Sir Kenneth O’ Conner, P said at page 429: “It is a strong thing for an appellate court to differ from the finding on a question of fact of the Judge who tried the case and who has had the advantage of seeing and hearing and the witnesses 13.Recently, the court of appeal revisited the jurisdictional remit in the case of Kenya Urban Roads Authority & another v Belgo Holdings Limited [2025] KECA 764 (KLR). The Court discussed the Jurisdiction in the following terms: Page 5 of 33

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37. We have considered the appeal, and this being a first appeal, we are under a duty to subject the entire evidence and the judgment to a fresh and exhaustive examination with a view to reaching our own conclusions in the matter. In carrying out this duty, we have to remember that we had no opportunity of seeing and hearing the witnesses who testified during the trial and to make an allowance for the same. We have also to remember that it is a big thing to overturn the findings of a trial court which has had the singular opportunity of reaching its conclusions based on a combination of the evidence adduced and observation by the court of the demeanor of witnesses. In a nutshell, a first appellate court must of necessity proceed with caution in deciding whether or not to interfere with the findings of a trial court, but of course, where such findings are not supported by the evidence on record or where they are founded on a misapprehension of the law, the axe must fall on the impugned judgment. This position is anchored in section 78 of the Civil Procedure Act, which requires a first appellate court to re-evaluate, reassess, and reanalyze the extracts of the record and draw its own conclusions. These provisions have been underscored in numerous decisions of the Superior Courts among them Peters v Sunday Post Limited [1958] EA 424, where the predecessor to this Court expressed itself as follows: “Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law an appellate court has jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that Page 6 of 33

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evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this really is a question of law), the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to the courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given…Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge’s conclusion. The appellate court may take the view that, without having seen or heard the witnesses it is not in a position to come to any satisfactory conclusion on the printed evidence. The appellate court, either because the reasons given by the trial Judge are not satisfactory, or because it Page 7 of 33

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unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question… 38. It not infrequently happens that a decision either way may seem equally open, and when this is so, then the decision of the trial Judge who has enjoyed the advantages not available to the appellate court becomes of paramount importance and ought not be disturbed. This is not an abrogation of the powers of a Court of Appeal on questions of fact. The judgment of the trial Judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved or otherwise to have gone plainly wrong.” 14.Bearing in mind the principles enunciated in the decisions [supra], It is now apposite to revert to the issues for determination. I shall address the issues sequentially. ISSUE NO. 1 Whether the Appellant proved the plea of customary trust to the requisite standard or otherwise 15.The appellants’ case was that one M’nguthari Thuranira M’kaibunga, now deceased was the original Page 8 of 33 owner of LR NO.

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KIEGOI/KINYANKA/645 (hereinafter referred to as the original suit property). Besides, it was their evidence that the deceased was the husband of the 1st appellant and father to the 2nd appellant and the 1st respondent. According to the appellants, by virtue of being the family members of the deceased and being in occupation of the original suit property which has now been subdivided, same was an ancestral land thus the 1st respondent was holding the land in trust for them. Their evidence was that the deceased left the original suit property to the family and later on discovered in the year 2021 that the 1 st respondent had transferred the property to his name. According to the appellants, the deceased ought to be restored as the owner of the original suit property for purposes of carrying out probate proceedings. 16.I beg to state that any claimant, the Appellants not excepted, is enjoined not only to plead customary trust but also to supply the particulars underpinning the plea of customary trust. It is only after the particulars have been supplied that the claimant is called upon to tender plausible, cogent, compelling and concrete evidence to prove the plea of customary trust. The evidence to be tendered must relate to a proper pleading before the court. 17.The amended plaint amended on 18.10.2022, bears particulars of trust. According to the appellants, the suit properties were an ancestral land that originally belonged to the deceased. What baffles the court is that the deceased passed on the 20th April 2000, I make reference to page 21 of Page 9 of 33

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the record of appeal which contains the death certificate. Now, since the year 2000, the appellants have been in occupation of a portion of the suit property with the knowledge of the 1st respondent who was registered as the proprietor of the original suit property on the 5th April 2001 (see page 61 of the record of appeal). 18.PW1 at page 107 of the record of appeal testified that,’…my husband left me on that parcel of land upon his demise…’ PW2 at page 108 of the record of appeal testified that,’…my mother also lives on land portion No. 645…’ The respondent on the other hand at page 110 of the record of appeal testified that he was gifted the land by the deceased before he passed on. He stated,’…my mother lives on the suit land…’ 19.The suit was filed in 2021, twenty years after the 1st respondent was registered as the owner of the original suit property. He has never lodged a suit against the appellants for vacant possession. He confirmed that the appellants are on the property and that his sister the 2 nd appellant is always on the suit property when she visits. 20. Minutes of the meetings held by clan elders of the dispute were produced in court whereby disputes involving the family of the deceased over various parcels of land were the bone of contention including the original suit property. Why was the 1st respondent allowing the 1st appellant to continue being in occupation of a portion of the original suit property after he had been registered as the owner of the same in the year 2001? The deceased had settled the 1st appellant on the land and the 1st respondent confirmed as much, thus corroborating the evidence of Page 10 of 33

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PW2 that their mother, the 1st appellant was still in occupation of the land. The 1st respondent let the appellants use the original suit property because he recognised that the 1st appellant was his mother and the deceased had settled her on the land thus she had interest on the original suit property. Even after the subdivision of the original suit property, the 1st respondent did not file a suit to evict the 1 st appellant who is his mother and the 2nd appellant being his sister. He let them continue being in occupation because he recognised that the appellants were family members hence entitled to be on the suit properties. 21.While still addressing the first issue, it is thus critical to interrogate whether the ingredients that must be proven before a plea of customary trust were demonstrated. The elements to be established were distilled by the Supreme Court of Kenya in the case of Kiebia v M’lintari & another [2018] KESC 22 (KLR) the court stated thus: “52. Flowing from this analysis, we now declare that a customary trust, as long as the same can be proved to subsist, upon a first registration, is one of the trusts to which a registered proprietor is subject under the proviso to Section 28 of the Registered Land Act. Under this legal regime (now repealed), the content of such a trust can take several forms. For example, it may emerge through evidence that part of the land, now registered, was always reserved for family or clan uses, such as burials, and other traditional rites. It could also be that other parts of the land, depending on the specific group or family setting, were reserved for various future uses, such as the construction of houses and other amenities by youths graduating into manhood. The categories of a Page 11 of 33

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customary trust are therefore not closed. It is for the court to make a determination, on the basis of evidence, as to which category of such a trust subsists as to bind the registered proprietor. 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 the 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.” 22.The Appellants were enjoined to prove and demonstrate that the suit property was family or ancestral land. However, it is common ground that the suit property was originally registered in the name of the 1 st appellant’s husband and also father to the 1st respondent. The alleged transfer was effected on the 5th April 2001 while the deceased passed on the 20th April 2000. This transfer was done when the deceased and the 1 st Page 12 of 33

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Appellant were already married with children i.e the 2nd appellant herein and the 1st respondent. PW2 and DW1 confirmed that as at 2021 when the suit had been lodged, the 1st appellant’s home was on the original suit property. PW1 testified that’…my husband left me on that parcel of land upon his demise…’ Firstly, the deceased as the head of the family, was registered as the owner of the original suit property who in turn settled the 1st appellant on the land, a fact that was admitted by the 1 st respondent who 20 years later after being issued with a title deed in respect of the original suit property, had no issue with the 1st appellant’s occupation on the land. Even after the subdivision of the original suit property in the year 2007 into LR NO. KIEGOI/KINYANKA/2295, 2296, 2297 and 2298, the 1st respondent never lodged any suit to recover the suit properties. The connotation being that the 1st respondent was aware that the appellants were in occupation of a family land, same have been settled by the deceased. 23.Secondly, the appellants are family members of the 1 st respondent and by extension to the original owner of the suit property. Thirdly, the relationship between the appellants and the 1st respondent was not remote. The parties herein confirmed that they were a nuclear family. DW1 confirmed that the 1st appellant had her home on the suit properties. 24.Fourthly, all the appellants herein could have been registered as the owners of the suit property by virtue of being family members of the deceased save for intervening circumstance. The bottom line is that the claimant must show that the land in question could very well have been registered in his/her name, save that the claimant was either a minor, of Page 13 of 33

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unsound mind, was not available at the point in time, or there was a family agreement warranting the registration in the name of the registered owner. The 1st respondent produced the minutes of 25th July 1992 (see pages 68 and 69 of the record of appeal). I must admit that the said document is illegible and I have painstakingly done my best to go through it. It appeared that the various family members of the deceased were being bequeathed parcels of land. In this case, the sons. The said meeting was in respect of the parcels of land belonging to the deceased. It identified the original suit property as one of the properties of the deceased. It was not resolved in the said meeting that the appellants or daughters of the deceased would be denied land. Neither was it said that the wives of the deceased would be displaced from their respective portions of land. The deceased being a polygamous, same decided to settle his family on various parcels of land. 25.The 1st respondent thus took away the rights of the appellants who after the registration, were left at the mercy of the 1st respondents’ whose position was that he had been gifted land by the deceased. I have also noted that the minutes being relied on by the 1 st respondent to claim ownership identified one Esta Kanja Nguthari to also get a portion of the original suit property however from the documents produced in court, the 1st respondent has transferred the original suit property to himself. So, he cannot rely and/or defend the said document as a basis of authority upon the ownership of the suit properties is based yet same out of greed has gotten the suit properties for himself. Page 14 of 33

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26.Can it be said that the suit property could have been registered in the name of the Appellant? The suit land did belong to the ancestry or family of the Appellants. Lastly, the claim on trust has been directed to a member of the family of the appellants. The 1 st respondent is a son to the 1st appellant and a brother to the 2nd- appellant, a fact that is not in dispute. To that extent, it is my considered view that the appellants proved the ingredients of customary trust. 27.Proof of trust, including customary trust, is dependent on the evidence tendered. The evidence must be consistent, credible and compelling. Absent evidence, the plea of trust, including customary trust dissipates into thin air; or collapses. 28.In the case of Kazungu Fondo Shutu vs Japhet Noti charo [2021] KECA, the Court of Appeal addressed the circumstances under which the claim of Trust may arise. The Court stated thus: “28. The concept of trust must however, be proved. This Court in the case of Mumo v Makau [2002] 1EA.170, held that “trust is a question of fact to be proved by evidence…..” See also Kanyi Muthiora v Maritha Nyokabi Muthiora, Nairobi Court of Appeal No.19 of 198 29. In Juletabi African Adventure Limited & another v Christopher Michael Lockley [2017] eKLR, this Court dealt with the issue of trust at length. The Court referred Twalib Hatayan Twalib Hatayan & Anor v Said Saggar Ahmed Al-Heidy & Others [2015] eKLR and re-stated the law on trusts as follows: Page 15 of 33

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“According to Black’s Law Dictionary, 9th Edition, a trust is defined as “1. The right, enforceable solely in equity, to the beneficial enjoyment of property to which another holds legal title; a property interest held by one person (trustee) at the request of another (settlor) for the benefit of a third party (beneficiary).” Under the Trustee Act, “… the expressions' trust' and 'trustee' extend to implied and constructive trust, and cases where the trustee has a beneficial interest in the trust property…” In the absence of an express trust, we have trusts created by operation of the law. These fall within two categories: constructive and resulting trusts. Given that the two are closely interlinked, it is perhaps pertinent to look at each of them in relation to the matter at hand. A constructive trust is an equitable remedy imposed by the court against one who has acquired property by wrongdoing. … It arises where the intention of the parties cannot be ascertained. If the circumstances of the case are such as would demand that equity treat the legal owner as a trustee, the law will impose a trust. A constructive trust will thus automatically arise where a person who is already a trustee takes advantage of his position for his own benefit (see Halsbury’s Laws of England supra at para 1453). As earlier stated, with constructive trusts, proof of parties’ intention is immaterial; for the trust will nonetheless be imposed by the law for the benefit of the settlor. Imposition of a constructive trust is thus meant to guard against unjust enrichment. … Page 16 of 33

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A resulting trust is a remedy imposed by equity where property is transferred under circumstances which suggest that the transferor did not intend to confer a beneficial interest upon the transferee ... This trust may arise either upon the unexpressed but presumed intention of the settlor or upon his informally expressed intention. (See Snell’s Equity 29th Edn, Sweet & Maxwell p.175). Therefore, unlike constructive trusts, where unknown intentions may be left unexplored, with resulting trusts, courts will readily look at the circumstances of the case and presume or infer the transferor’s intention. Most importantly, the general rule here is that a resulting trust will automatically arise in favour of the person who advances the purchase money. Whether or not the property is registered in his name or that of another is immaterial (see Snell’s Equity at p.177) (supra).” 31. As earlier stated, the existence of a trust is a question of evidence. In the Juletabi case (supra), the court held that the onus lies on the 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 [only] 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.” 32. The onus to prove the existence of a trust lay squarely on the Appellants. Section 107 of the Evidence Act further provides that: “Whoever desires any court to give judgment as to any legal right or Page 17 of 33

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liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.” 36.I further wish to rely on a recent court of appeal decision of Mungai v Njoroge & another [2026] KECA 373 (KLR), whereby the facts in the said case were similar with the instant appeal before me. The court held that, “16. We have considered the record, the impugned judgment and the submissions. There is no dispute that land Kiambaa/ Ruaka/139 which was registered in the name of the deceased was family land. It was registered in his name to hold in trust for himself, his siblings and his mother. This is the root of the title that he was holding. He did not have an absolute claim to the parcel of land. He became registered when he had already married the 2nd respondent whom he settled here and begun to have a family 17. In our considered view, the 2nd respondent may not have contributed to the acquisition of the land, but, by virtue of her marriage into the family, she acquired a spousal claim to the land. Her son, the 1st respondent, was eventually expected to inherit some of this land upon the death of the deceased. 18…Section 30 of the Registered Land Act (now repealed), and now mirrored in section 28 of the Land Registration Act, was to the effect Page 18 of 33

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that spousal rights are an overriding interest to which a registered title is subject, even though it does not appear in the register. They are binding both on the registered owner and on the person who subsequently acquires an interest in the property. This Court in Mugo Muiru Investments Limited -vs- E.W.B. & 2 Others [2017] eKLR observed that a spouse had a beneficial interest in matrimonial property which her husband sold without the wife’s consent. 19.The Supreme Court in Shah & 7 Others -vs- Mombasa Bricks & Tiles Ltd & 5 Others (Petition No. 18 (E020) of 2022 [2023] KESC 106 (KLR) emphasized that a constructive trust arises when it would be inequitable for a legal owner to deny another party a beneficial interest. The trust protects the rightful interests of disadvantaged parties when legal owners abuse their position 20.We emphasize that the deceased knew he had a family of a wife and 8 children, yet he transferred the three titles (Kiambaa/Ruaka/3257, Kiambaa/Ruaka/3257, Kiambaa/ Ruaka/3258 and Kiambaa/Ruaka/3259) to the appellant who did not provide any consideration. We find that the action was intended to disinherit the family, the two respondents included, and that this was fraudulent. We find that the appellant’s title to Kiambaa/Ruaka/3257, 3258 and 3259 was subject to the overriding interests by the respondents. 21. Page 19 of 33

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21. The evidence is clear that the appellant was related to the deceased’s family and he knew that, despite the matrimonial differences in the family, the family existed.” 37.Among the particulars of breach of trust contained at paragraph 8A of the amended plaint, the appellants pleaded that the appellants and the 1 st respondent are family members and that the appellants equally have a right to be registered as owners of the original suit property (now subdivided). 38.What I gather from the Appellants and 1 st respondent’s testimony is that the original suit property was a family and/or customary land and that the 1 st appellant has been in occupation of the portion of the original suit property where her home was established on it by the deceased. That even after the demise of the deceased in the year 2000 and the transfer of the original suit property to the 1st respondent in the year 2001, same is still in occupation and this was confirmed by DW1, the 1st respondent herein. 39.I have already found that from the evidence on record, the 1 st respondent was aware of the appellants’ interests over and in respect of the original suit property and that’s why despite the lapse of 20 years after his registration as the owner of the original suit property, same did sued the appellants for vacant possession. The 1st respondent ignored the fact that the appellants had been placed in the suit property by virtue of being family members of the deceased and/or that the suit property was a family land. Page 20 of 33

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40.It is thus my humble view that the appellants demonstrated that the suit property was an ancestral and/or family land thus the 1 st respondent held the suit property in trust for the appellants. ISSUE N0 2 Whether the allegation of fraud was proved 41.At paragraph 7 of the Amended Plaint, the appellants listed particulars of fraud on the part of the respondents herein. It was the duty of appellants to not only plead fraud but specifically prove the allegations therein. The appellants had been issued with the limited grant of letter of administration in respect of the estate of the deceased. Same sought for an order of cancellation of the suit properties and restoration of the register of the original suit property in the name of the deceased. 42.Paragraph 6 of the amended plaint states that the appellants discovered the fraudulent transfer in the year 2021. I have perused the certified copies of the certificates of search in respect of the suit properties and the green card in respect of the original suit property and same have indeed been certified in various dates of the year 2021 while the suit was lodged in the same year. Besides, the minutes of the family meeting which was also produced as an exhibit was conducted in the year 2021. Pursuant to Section 26 of the Limitation of Actions Act alleged fraud was discovered by the appellants in the year 2021 thus the suit was lodged within the statutory timelines. 43.Be that as it may, was allegation of fraud proved? In the authority of KINYANJUI KAMAU V GEORGE KAMAU NJOROGE [2015] EKLR, the honorable appellate judges when dealing with an issue of fraud held that, Page 21 of 33

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‘…it is trite law that any allegations of fraud must be pleaded and strictly proved. See NDOLO V NDOLO (2008) 1 KLR (G &F) 742 where the court held that:’…we start by saying that it was the respondent who was alleging that the will was a forgery and the burden to prove that allegation law squarely on him. Since the respondent was making a serious charge of forgery or fraud, the standard of proof required of him was obviously higher than that required in ordinary civil cases namely proof upon a balance of probabilities but the burden of proof on the respondent was certainly was certainly not one beyond a reasonable doubt as in criminal cases…’ 44.The appellate judges in the above-mentioned case continued to hold that, ‘… in cases where fraud is alleged, it is not enough to simply infer fraud from the facts. In VIJAY MORJARIA V NANSINGH MADHUSINGH DARBAR & ANOR [2000] EKLR, Tunoi JA (as he was then) stated as follows,’ it is well established that fraud must be specifically pleaded and that particulars of the fraud alleged must be stated on the face of the pleading. The acts alleged to be fraudulent must of course be set out, and then it should be stated that these facts were done fraudulently. It is also alleged that fraudulent conduct must be distinctly alleged and as distinctly proved and it is not allowable to leave fraud to be inferred from the facts…’ The appellate court held,’…in this case fraud cannot be imputed on the part of the respondent by mere fact that the record in relation to the subject property was missing at the lands registry. To succeed in the claim for fraud, the appellant needed to not only plead and particularize it, but also Page 22 of 33

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lay a basis by way of evidence upon which the court would make a finding…’ 45.The appellants’ case was that the 1st respondent had fraudulently transferred the original suit property to his name and later subdivided it in various portions without the input of the rest of the family. They accused the respondents of carrying out fraudulent proceedings in order to take away the family land despite the appellants being in occupation of the said suit property. PW1 testified at page 107 of the record of appeal that, “..i still live on the property my husband and I used to live…I live with Eunice…the property belong to my husband…’ 46.PW2 at page 108 of the record of appeal testified that,’…its not true that on 30/03/2000 a month before my father passed on he transferred the property to 1st defendant…the elders were wondering of how the land had changed hands. My mother also lives on portion of 645…my father died on 20/04/2000. We got wind that my father’s land had been transferred to 1 st defendant…my father never went to Land Control Board on 30/03/2000…’ 47.In MUNYU MAINA V HIRAM GATHIHA MAINA [2013] EKLR, the appellate court held that, ‘…Our consideration of the judgment reveals that the learned judge erred in failing to appreciate that the respondent had the evidential burden to prove how he acquired the suit property in order to dislodge the appellant’s testimony that the suit property belonged to their deceased father and that it was their deceased father who put both parties in possession of the property to be shared equally. It is true that the legal burden to prove the existence of the trust rests with the appellant. However, Page 23 of 33

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the moment the appellant testified that the suit property belonged to their deceased father, the evidential burden shifted to the respondent to dislodge this item of evidence. The appellant is in possession of a portion of the suit property. Section 116 of the Evidence Act requires the respondent to prove that the appellant has no interest in the suit property. We state that when a registered proprietor’s root of title is under challenge, it is not sufficient to dangle the instrument of title as proof of ownership. It is this instrument of title that is in challenge and the registered proprietor must go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which need not be noted on the register. It is our considered view that the respondent did not go this extra mile that is required of him and no evidence was led to rebut the appellant’s testimony. We find that a trust exists in relation to the suit property…’ 48.Similarly, in the authority of MARTEVE GUEST HOUSE LIMITED V NJENGA & 3 OTHERS (CIVIL APPEAL 400 OF 2018) [2022] KECA 539 (KLR) (28 APRIL 2022) (JUDGMENT) (WITH DISSENT - W KARANJA, JA), the appellate was dealing with an issue of bona fide purchaser held that,… When a registered proprietor’s root of title was under challenge, it was not sufficient to dangle the instrument of title as proof of ownership. It was that instrument of title that was in challenge and Page 24 of 33

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the registered proprietor had to go beyond the instrument and prove the legality of how he acquired the title and show that the acquisition was legal, formal and free from any encumbrances including any and all interests which needed not be noted on the register. …Where an act was a nullity, it was void and every proceeding founded on it was also in law a nullity, every act premised on a nullity could not accrue legitimacy or legality, Sanctity of title was never intended or understood to be a vehicle for fraud and illegalities or an avenue for unjust enrichment at another person’s expense, A court of law could not protect title to land which had been obtained illegally or fraudulently merely because a person was entered in the register as proprietor… 49.Lastly in the case of JOSEPH KAGUNYA V BONIFACE K. MULLI & 3 OTHERS [2018] EKLR, the honorable court when dealing with a case where the title had been acquired illegally referred to the case of Daudi Kiptugen V COMMISSIONER OF LANDS & 4 OTHERS [2015] EKLR whereby it was held that,’…In order to determine the question whether the lease held by the plaintiff is valid, it must be demonstrated that it was properly acquired. It is not enough that one waves a Lease or a Certificate of Lease and assert that he has good title by the mere possession of the Lease or Certificate of Lease. Where there is contention that a Lease or Certificate of Lease held by an individual was improperly acquired, then the holder thereof must demonstrate through evidence that the Lease or Certificate of Lease that he holds was properly acquired. The acquisition of title cannot be construed only in the end result, the process of acquisition is material. It follows that if a document of title was not acquired through the proper process, the title itself cannot be said to be a good title. If this were not the position, then all one would need to do is to manufacture a Lease or Certificate of Title at a backyard or the corner of a dingy street and by Page 25 of 33

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virtue thereof claim to the rightful proprietor of the land indicated therein. It is therefore necessary for this court to determine how the plaintiff ended up having a Lease and Certificate of Lease in his name and further determine if the Government did intend to issue the plaintiff with a Lease over the suit land.” 50.The 1st respondent’s title was being challenged, it was his duty to demonstrate that the titles he was holding were legally and procedurally obtained. It was not enough to state that there was a family meeting that awarded him the land and in the absence of the rest of the family. If he was gifted by the deceased, he had to demonstrate that the deceased had done everything possible to divest himself of the property by obtaining the land control board consent and executing a valid transfer instrument. At page 110 of the record of appeal, the 1st respondent testified that,’…when I was gifted land, other siblings also received land…’ 51.I beg to make reference in the court of appeal decision of ERNEST OGWARA V MANGERA & 4 OTHERS [2021] KECA 117 (KLR), where it was held that,’… our conclusion is that the deceased gifted the 3 rd respondent the suit land before his death having executed all the documents necessary on his part to effect the transfer…’ 52.Among the documents produced by the 1st respondent to claim that the deceased had gifted him the original suit property just a month shy of his demise, is the application for consent at page 67 of the record of appeal and consent from land control board at page 60 of the record of appeal. The Page 26 of 33

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application for consent to transfer is incomplete, undated, unsigned and clearly, it could not have been signed by the deceased. Picture this, the deceased died on the 20th April 2000. The consent to transfer at page 60 of the record of appeal refers to an application made on 29 th March 2000, the application for consent at page 67 is in respect of subdivision of the original suit property into 5 portions while at page 71, there seems to be a receipt payment of transfer by the 1st defendant on the 5th April 2000. If the deceased was the one sub-diving the original suit property into 5 portions as being alleged at page 67 of the record of appeal, why does the green cards in respect of the suit properties at pages 58 and 59 of the record of appeal show that the 1st respondent as the 1st registered owner of the suit properties? 53.Clearly, the application for consent at page 67 of the record of appeal is not a genuine document and that is why the next page is missing as it was never executed by the deceased. On the other hand, there is no transfer instrument executed by the deceased and the 1st respondent and attested before an advocate and registered before the land registrar. It was incumbent upon the 1st respondent to demonstrate that the deceased had executed the application for consent to transfer the original suit property and that he signed the transfer instrument before his death. There was no proof that the mandatory stamp duty was paid by the deceased before the alleged transfer. The 1 st respondent has only produced a receipt at page 71 of the record of appeal. Interestingly, it is not the deceased paying for the transfer fees as the owner of the original suit property. 54.The alleged consent at page 60 from the land control board has not been signed by the concerned officer. Besides, the document at page 70 of the Page 27 of 33

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record of appeal also known as Tea Plantation License is dated 20 th January 2000. As at this date, the original suit property was owned by the deceased. The 1st respondent cannot rely on the said document to prove ownership. The property was registered in the name of his father and it baffles the court why the 1st respondent was claiming the land. It could then appear that the 1 st respondent’s scheme to take the original property commenced before the death of the deceased. He posed as the owner of the land yet the deceased hadn’t passed on the 20th January 2000. 55.The 1st respondent has relied on a case i.e MERU CMCC NO. 138 OF 1993 and maintained that the consent is what gave him the original suit property. That it was signed by the deceased. ON the other hand, the witness who signed as a clan elder was not called in court to confirm whether there was such a consent. The 1st respondent did not prove to court that the said consent was ever adopted hence same could not be deem as a court order. 56. In GEOFFREY M. ASANYO & 3 OTHERS V. ATTORNEYGENERAL, [2020] EKLR, the supreme court held that, “[40] Adoption of a consent by a Court is a process, in the course of which a Court discharges the duty of evaluating the clarity of the consent placed before it by parties and giving directions on the manner of adoption. This circumvents the risk of an unlawful Order and validates the mode of adoption and compliance. Thus, a consent by parties becomes an Order of the Court only once it has been formally adopted by the Court…” Page 28 of 33

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57.Similarly, in NON- COORDINATION GOVERNMENTAL BOARD V EG ORGANIZATIONS & 5 OTHERS [2023] KESC 102 (KLR), it was held that, “12. But of significance is the fact that the consent has not been formally adopted by the Court as an order and therefore serves no useful purpose in these proceedings. It could not per se have settled the issue of costs between the parties.” 58.It is my humble view that the 1st respondent did not demonstrate that the titles he was holding were lawfully and procedurally obtained. He only dangled the titles in court but failed to prove that the deceased had gifted him the original suit property. There were missing links and/or channels that led to his registration as the owner of the suit properties. 59.In the case of JAMES MUNIU MUCHERU V NATIONAL BANK OF KENYA LIMITED [2019] EKLR, the honorable appellate judges held that, “…indeed it is settled law that in civil cases the standard of proof is on a balance of probability. This is in effect to say that the courts will make a finding based on which party’s version of the story is more believable…’ Section 107 of the Evidence Act places the burden of proving the alleged on the person alleging. That burden was discharged by the appellants herein. The suit properties were not lawfully obtained by the 1st Respondent. Page 29 of 33

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60.Sections 107 and 108 of the Evidence Act places the burden of proof on the party who alleged that the 1st respondent fraudulently obtained the suit properties. He who alleges must prove the alleged. Was that burden been discharged by the appellants before the trial court? The answer is in the affirmative. I thus conclude that the allegations of fraud were proved to the required standards. ISSUE NO. 3 Whether the Learned Trial Magistrate misapprehended and misapplied the law as pertains to customary trust or otherwise 36.Having read the judgment of the trial court, it is my considered view that the learned trial magistrate disregarded the evidence placed before him. The trial magistrate correctly appreciated the law on customary trust but failed to apply the same on the facts before him. The evidence adduced by parties was that the appellants and the 1 st respondent are family members and that the deceased as the original owner of the land had established and/or settled the 1st appellant as his wife on the original suit property and that despite the alleged transfer of title, the 1st appellant and her family remained on the land which fact was admitted by the 1st respondent. 37.On the other hand, the trial court misapprehended the law on gift inter vivos. It was incumbent upon the 1st respondent to prove that the deceased had divested himself of the original suit property. The deceased had not executed any transfer instrument to demonstrate that he intended to transfer and/or gift the 1st respondent the said land. ON the other hand, even assuming that the 1st respondent had proved that the deceased gifted him the original suit Page 30 of 33

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property, which he did not, the interest of the appellants over and in respect on the suit properties could not be wished away. They had acquired overriding interest over the suit property, trust. 38.Thus, I find and hold that the conclusion and findings which were arrived at by the trial magistrate were not anchored by the evidence on record. The findings are perverse, at variance and/or inconsistent with the totality of the evidence. 39.In a nutshell, I conclude that the findings of the trial court are not well grounded. The findings are based on quicksand. They are hereby varied and/or set aside. Final orders: 40.Flowing from the analysis contained elsewhere hereinbefore, the final orders of the court are: i. The Judgment of the Learned Trial Magistrate dated 22.04.2026 and the consequential decree arising therefrom are hereby set aside. ii. The Appeal be and is hereby allowed as hereunder: a) A declaration is hereby issued that the 1 st Respondent holds LR NO. KIEGOI/KINYANKA/2295, 2296, 2297 and 2298 (formerly LR NO. KIEGOI/KINYANKA/645) in trust for and on behalf of the appellants herein. Page 31 of 33

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b) The Land Registrar-Maua is hereby ordered to cancel and/or nullify LR NO. KIEGOI/KINYANKA/2295, 2296, 2297 and 2298 and restore the register of LR NO. KIEGOI/KINYANKA/645 in the names of M’NGUTHARI THURANIRA M’KAIBUNGA (now deceased) c) Pursuant to the restoration of the register of LR NO. KIEGOI/KINYANKA/645, an order of permanent injunction is hereby issued against the Respondents, their agents, servants and/or employees from selling, evicting, entering, charging, leasing and/or in any way interfering with LR NO. KIEGOI/KINYANKA/645. d) For avoidance of doubt, the charge (if any) registered on LR NO. KIEGOI/KINYANKA/2295, 2296, 2297 and 2298 by any Chargee is hereby discharged and/or removed and the Chargee be at liberty to pursue the 1st Respondent appropriately. iii. The Costs of the Appeal and the suit vide MAUA CMCELC NO. E206 OF 2021 is hereby awarded to the appellants. 41.It is so ordered. DATED, SIGNED AND DELIVERED AT MERU THIS ……24TH …… DAY OF SEPTEMBER, 2026. Page 32 of 33

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OGUTTU MBOYA, FCIArb;CPM[MTI-EA] JUDGE In the presence of Court Assistant: Zakayo Mr. Nkunja Kaberia for the Appellants Mr. Haron Gitonga for the 1st Respondent Ms. Miranda for the 2nd and 3rd Respondents Page 33 of 33

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