Kabata v Mbugua (Civil Appeal 274 of 2019) [2025] KECA 524 (KLR)
The bottom line
#Kenya's Court of Appeal ruled that anyone claiming family land is held in trust must prove it with solid evidence—claims without proof will fail.
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 High Court had jurisdiction to determine the existence of a trust in succession proceedings, or whether such issues are a preserve of the Environment and Land Court
- 2.Whether the parcel of land LR No. Limuru/Rironi/T.190 registered in the name of the deceased was held by the deceased in trust for the respondent and his cousins
Key legal issues
#Jurisdiction of the succession court to determine trusts and land ownership
The High Court sitting in succession proceedings has jurisdiction to determine whether a deceased person held property in trust; the appellant's contention that such issues are a preserve of the Environment and Land Court was rejected.
Section 47 of the Law of Succession Act confers on the High Court jurisdiction to entertain any application and determine any dispute under the Act. Rules 17, 40, 44 and 58 of the Probate and Administration Rules, together with rule 63(1) importing Civil Procedure Rules, show succession courts may deal with litigious and contentious matters, including questions of trust. Whether an issue can be conveniently determined in succession proceedings is not a question of jurisdiction. The court adopted its earlier holding in Bena Nafula Makana.
Burden of proving a trust
The party alleging a trust bears the burden of proving it through evidence; a trust is never presumed by the court except in cases of absolute necessity.
Relying on Juletabi African Adventure and Peter Ndung'u Njenga, the court restated that the law never implies a trust except in absolute necessity, and the intention of the parties to create a trust must be clearly determined before a trust is implied. Section 107 of the Evidence Act places the burden on the person asserting the facts. The respondent admitted in cross-examination that he had no evidence of the gift from his grandfather, and the former Chief's adjudicated proceedings related to a different parcel.
Whether the elders' decision and evidence supported the finding of a trust over LR No. Limuru/Rironi/T.190
The elders' decision did not find that the deceased held the property in trust for the respondent and his cousins; rather, it held the property was to remain the deceased's as a gift (Uramati) under Kikuyu custom, and the Green Card for T.166 showed the respondent's father and uncle had already inherited that parcel.
The High Court had erred in reading the elders' proceedings as supporting the trust claim. The elders expressly agreed that plot T.190 would remain the property of the deceased as a gift under Kikuyu custom because his brothers had taken plot T.166. The Green Card corroborated that the brothers inherited T.166 in 1979, so their sons could not again claim their fathers' share in T.190. Had the High Court properly analysed the evidence, it could not have arrived at its decision.
Validity of the alleged gift inter vivos
The alleged gift from the grandfather could not be sustained; gifts of registered land must be by registered transfer or in writing/declaration of trust in writing, and the respondent had no evidence of the gift.
Adopting Nyamweya, J.'s statement in Re Estate of the Late Gedion Manthi Nzioka, gifts inter vivos of land must be by registered transfer, in writing, or by a written declaration of trust, and must be complete to be valid. The respondent claimed the land was gifted by his grandfather, who was not the registered owner, and conceded in cross-examination that he had no evidence of the gift.
Legal principles established
#- On a second appeal, the Court of Appeal confines itself to matters of law only, unless it is shown that the court below considered matters it should not have considered, or failed to consider matters it should have considered, or the decision is perverse.
- The High Court has jurisdiction under section 47 of the Law of Succession Act to determine any dispute under the Act, including questions of trust, in succession proceedings; it need not decline jurisdiction in favour of another forum.
- The onus lies on a party relying on the existence of a trust to prove it through evidence; courts will not imply or presume a trust save in case of absolute necessity and to give effect to the intention of the parties.
Court orders
#- 1.Appeal allowed
- 2.Judgment of the High Court set aside
- 3.Estate of the deceased to be distributed as per the proposed mode of distribution in the affidavit sworn by Solomon Muniu Kabata on 8th July 2014
- 4.Appellant to have costs of this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kiambu
- Civil Appeal No. 19 of 2018
- Jurisdiction invoked
- Second appeal under the Court of Appeal's appellate jurisdiction, limited to matters of law
Relief refused
#Respondent's claim that LR No. Limuru/Rironi/T.190 was held in trust for him and his cousins
The respondent did not produce cogent evidence to prove the trust; the burden of proof lay squarely on him and was not discharged
Costs
The appellant shall have costs of this appeal.
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.
It is settled that the onus lies on a party relying on the existence of a trust to prove it through evidence.
The question as to whether the deceased held the property in issue in trust was one that the High Court could have conveniently determined in the succession proceedings.
The upshot is that this appeal is fully merited, and the judgment of the High Court cannot stand. We allow the appeal and set aside the judgment of the High Court. We direct that the estate of the deceased be distributed as per the proposed mode of distribution in the afidavit sworn by Solomon Muniu Kabata on 8th July 2014. The appellant shall have costs of this appeal.
Issues in the judgment
#The judgment states the High Court 'rendered its decision on 27th March 2019' in one passage but earlier describes the appeal as from a judgment 'delivered on 10th April 2019', an internal inconsistency in the date of the High Court decision.
The judgment refers to the trial court's decision on distribution variously as a ruling of 16th April 2012, a ruling dated 6th April 2012 in the memorandum of appeal, and a judgment/ruling dated 20th December 2017, without reconciling these dates.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kabata v Mbugua (Civil Appeal 274 of 2019) [2025] KECA 524 (KLR)", Case Analysis (2025). Civil Appeal No. 19 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/524/eng@2025-03-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.