Muraguri & 5 others v Macharia (Civil Appeal 193 of 2018) [2023] KECA 384 (KLR)
The bottom line
#The Court of Appeal ruled that family status alone proves nothing in land trust claims; whoever alleges a customary trust must produce real evidence.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge failed to analyse the pleadings and facts evidencing a customary trust by the respondent in respect of the suit land
- 2.Whether the learned Judge failed to interrogate the respondent's evidence regarding his earnings and resources pertaining to the purchase and loan repayments, as required under Section 112 of the Evidence Act
- 3.Whether the appellants should have been spared costs given that the case was a family dispute involving siblings
Key legal issues
#Whether a customary trust was established over land purchased from the Settlement Fund Trustees and registered in the respondent's name
No trust was proved. The claim that the land was bought by the parties' mother was based on assumption, not evidence, and first-born status alone does not raise a presumption of trust.
The Court, as a first appellate court, re-evaluated the evidence. The appellants conceded they never possessed or occupied the land, distinguishing Mukangu v Mbui and Njenga Chogera. Under Kiebia v M'Lintari, occupation is no longer a prerequisite for a customary trust, but the claimant must still prove the nature of the holding and the intention of the parties. The appellants produced no documentary evidence that their mother paid the deposit or loan, and the respondent's uncontroverted check-off salary payments to the SFT supported his sole ownership.
Whether the trial court erred in evaluating the respondent's earnings and capacity to purchase the land
No error. The respondent was in gainful employment for about a year by December 1964 and could have raised the Kshs 5,000/- deposit; the probability that he raised it from his own resources could not be ruled out.
The respondent produced documents, not controverted by the appellants, showing SFT loan repayments deducted from his salary and outstanding sums as at 1973-1975, contradicting the claim of a self-sustaining family farm. His continued payments after the mother's death in 1971 were consistent with payments from his own resources. The appellants did not even prove the purchase price.
Whether costs should have been waived as a family dispute
Costs follow the event; the trial court's award of costs to the successful respondent was properly upheld and the appellants were denied the costs of the appeal.
Although the parties are siblings, the appellants claimed 12 of the 14.5 hectares, forcing the respondent to defend his rights at considerable effort. The appellants did not demonstrate that the award of costs was erroneous, and there was no justifiable reason to deny costs to a successful party.
Legal principles established
#- A trust, including a customary trust, is an overriding interest under section 28(b) of the Land Registration Act and need not be noted on the register; absence of such an entry does not preclude a claim based on an unregistered trust (adopted from the trial court's reasoning, not disturbed on appeal).
- The relationship of brother and sister, or the fact that a defendant was the first born, does not by itself automatically raise the presumption of a trust.
- Possession, occupation or usage of land is no longer a requirement to establish a customary trust, but every claim must be proved on its own evidence; the categories of customary trust are not closed.
- A parent's gift of money or property to a child for the child's advancement should not be construed as an obligation that whatever the child produces from that gift is held in trust for siblings.
- Costs follow the event; the fact that a dispute is between siblings does not of itself entitle parties to bear their own costs.
Court orders
#- 1.The findings of the trial court that the appellants failed to prove that the suit land was held in trust by the respondent are upheld
- 2.The trial court's order on costs of the suit is upheld
- 3.The appellants shall pay the respondent the costs of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- not stated (plaint dated July 30, 2012, amended April 11, 2014)
- Jurisdiction invoked
- First appeal to the Court of Appeal under its appellate jurisdiction (statutory basis not expressly stated in the judgment)
Relief refused
#Declaration that the respondent held the suit land in trust for the appellants and order for subdivision and distribution of the suit land
The appellants failed to discharge the burden of proving that their mother purchased the suit land or that a trust, customary or otherwise, arose
Relief from liability for costs on the ground that the suit was a family dispute between siblings
The fact that the dispute was between siblings does not mean costs would be borne by the respective parties; costs follow the event and the award to the successful party was not shown to be erroneous
Costs
The trial court's order awarding costs of the suit to the respondent was upheld, and the respondent was awarded the costs of the appeal as the successful party.
Quotable passages
#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 relationship of brother and sister, or the fact that the defendant was the first born, by itself without anything more, cannot be said to automatically raise the presumption of a trust.
The onus of proof vested on the appellants to establish that the land was purchased by their mother. However, they did not discharge that onus.
In efiect, possession, or occupation or usage of the land is no longer a requirement to establish a customary trust.
The fact that the mother of the parties herein was buried on the land did not, and could not, of itself, imply that the land belonged to her.
In the final analysis, we find that the appellants failed to prove that the suit land was held in trust by the respondent. There was no proof that the land was given to the respondent by the mother of the parties herein, after she purchased it from the Settlement Fund Trustees. Therefore, we uphold the findings by the trial court.
Accordingly, we also uphold the order which the trial court had made in respect to the costs of the suit.
Finally, as the respondent had been successful in opposing the appeal, we award him the costs thereof. We so order because the appellants have not satisfied us that there was any justifiable reason to deny costs to the party who was successful.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Matingo & another v Mutisya & 2 others (Environment and Land Case Civil Suit E096 of 2021) [2025] KEELC 6059 (KLR)[2025] KEELC 6059 (KLR)18 Sept 2025applied
Cite this brief
#Cite this brief
Caselaw, "Muraguri & 5 others v Macharia (Civil Appeal 193 of 2018) [2023] KECA 384 (KLR)", Case Analysis (2023). Civil Appeal (amended Memorandum of Appeal dated May 5, 2022) - not stated. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/384/eng@2023-03-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.