Mary Wangui Maina (sued On Behalf of Maina Kihu Deceased) v Lawrence Gachau Kihu & 4 others
The bottom line
#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
#Executive summary
#Key legal issues
#Whether a customary trust attached to the suit property and passed to Maina Kihu upon his acquisition of it
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.
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.
Whether the ELC's distribution (1 acre to each beneficiary, 5.7 acres to Maina Kihu's estate for redeeming the land) was sound
Yes. The ELC properly applied its mind and no party was unfairly prejudiced.
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.
Whether an express or implied trust in favour of the brothers could be established on the evidence
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.
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.
Legal principles established
#- 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
#- 1.Appeal dismissed
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.