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Court of AppealDismissedFirst Appeal from Murang'a ELC No. 468 of 2017· [2025] KECA 1075 (KLR)

Mary Wangui Maina (sued On Behalf of Maina Kihu Deceased) v Lawrence Gachau Kihu & 4 others

Court of Appeal of Kenya
5 June 2025
2,142 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Court of Appeal confirmed that family land held under customary trust stays trust land even when one relative pays to redeem it—redeemers get more, not all.

What this practically means

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Executive summary

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This was a first appeal to the Court of Appeal at Nyeri from a judgment of the Environment and Land Court at Murang'a (ELC No. 468 of 2017) delivered on 15th November 2018 concerning LR Loc. 2/Kanderendu/63 measuring 13.7 acres. The respondents, children of Kihu Nyanjui, claimed the land was held in customary trust for the family; their uncle, Maina Kihu, redeemed the property from an auction after a loan default in 1972 and later had it registered in his own name. The ELC found the land subject to a customary trust, awarded each of the beneficiaries of Kihu Nyanjui one acre and gave the estate of Maina Kihu the balance of 5.7 acres in recognition of his redemption of the property. The appellant, Maina Kihu's widow, contended he was a bona fide purchaser for his own benefit and that no trust passed to him. The Court of Appeal framed a single issue: whether Maina Kihu was registered in trust for his brothers after redeeming the property. Applying the Supreme Court's criteria in Kiebia v M'lintari and the burden-of-proof principle in Juletabi, the Court found the property was trust land ab initio, undisputed by the parties, and that this trust interest passed to Maina Kihu as a family member; his greater financial capacity could not defeat the family's beneficial interests. Finding no fault in the ELC's distribution, the Court dismissed the appeal and directed each party, being family members, to bear its own costs.

Key legal issues

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01

Whether a customary trust attached to the suit property and passed to Maina Kihu upon his acquisition of it

Holding

Yes. The property was trust land ab initio and that trust interest passed to Maina Kihu, a family member, despite his sole financial contribution to redeeming it.

Reasoning

The Court applied the Kiebia v M'lintari criteria for customary trusts and held that since the holding was trust land ab initio and undisputed, the trust interest passed to Maina Kihu as a family member. It would be an injustice to allow a family member's greater financial muscle to defeat the beneficial interests of other family members.

p. 4
02

Whether the ELC's distribution (1 acre to each beneficiary, 5.7 acres to Maina Kihu's estate for redeeming the land) was sound

Holding

Yes. The ELC properly applied its mind and no party was unfairly prejudiced.

Reasoning

The ELC rewarded Maina Kihu's redemption of the property with a larger portion while giving each beneficiary an acre. The Court found this distribution provided for all parties fairly and reached the correct decision, warranting affirmation.

p. 4
03

Whether an express or implied trust in favour of the brothers could be established on the evidence

Holding

No evidence showed the brothers requested or contributed to the purchase, so no implied trust arose from the transaction itself; the trust arose from the nature of the holding ab initio.

Reasoning

Applying Juletabi, the onus of proving a trust lies on the party asserting it. The record showed no communication or contribution by the brothers towards the redemption. The respondents also failed to demonstrate payments to refund the redemption cost since 1977. The trust instead arose from the undisputed nature of the original holding.

p. 3

Legal principles established

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  • A customary trust, once proved, binds a first registered proprietor under the proviso to section 28 of the Registered Land Act, and where trust land ab initio is transferred to a family member, that trust interest passes to the transferee
  • The onus lies on a party relying on the existence of a trust to prove it through evidence; courts will not imply a trust save in case of absolute necessity
  • On a first appeal, the Court of Appeal must reconsider and evaluate the evidence afresh, though making allowance for not having seen or heard the witnesses

Court orders

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  1. 1.Appeal dismissed
  2. 2.Each party directed to bear its own costs, they being family members
On appeal from
Environment and Land Court
Murang'a ELC No. 468 of 2017
Jurisdiction invoked
First appeal to the Court of Appeal under its appellate jurisdiction

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mary Wangui Maina (sued On Behalf of Maina Kihu Deceased) v Lawrence Gachau Kihu & 4 others", Case Analysis (2025). First Appeal from Murang'a ELC No. 468 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1075/eng@2025-06-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.