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ELCPartially AllowedCase No. 149 of 2007 (Embu Award No. 14 of 2009) - appeal transferred to ELC· [2025] KEELC 5882 (KLR)

Njeru v Njeru (Environment and Land Appeal 91 of 2015) [2025] KEELC 5882 (KLR)

Environment and Land Court
22 July 2025
KBK. BOR
1,857 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court confirmed that registered land can still belong to family under customary trust, even if the claimant never lived on it.

What this practically means

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Executive summary

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This first-instance appeal before the Environment and Land Court at Embu, transferred from the Provincial Land Disputes Appeals Committee under Practice Directions No. 1617 of 2012, concerned land parcel Ngandori/Kiriari/394 (approximately 7.5 acres), registered in the Respondent's name. The Appellant, the Respondent's brother, claimed the Respondent held the land in trust for the family under a customary trust, the land having belonged to their late father and been allocated to their mother during demarcation. The Land Disputes Tribunal had dismissed his claim, reasoning largely that he did not occupy or work the land, and directed the Respondent to continue occupying it. On appeal via written submissions, the court applied the Supreme Court's Kiebia principles on customary trust, noting that possession or occupation is not a requirement. The court found the Tribunal lacked jurisdiction over land ownership under section 3(1) of the repealed Land Disputes Tribunals Act, but treated the prior tribunal proceedings as evidence of the land's history - particularly the Respondent's admission that the clan allocated him the land and the award of 2 acres to a brother, Elias Ndwiga, in Case No. 39 of 2003. The court held that a customary trust was established on a balance of probabilities, set aside the Tribunal's award, declared the Respondent a trustee, and allocated the Appellant 2 of the remaining 5.5 acres, considering the Respondent's long occupation and development. Each party bore its own costs. Judgment delivered virtually at Embu on 22 July 2025 by K. Bor, J.

Key legal issues

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01

Whether a customary trust existed over Ngandori/Kiriari/394 in favour of the Appellant

Holding

The court found the Appellant proved, on a balance of probabilities, a customary trust; the Respondent holds the land in trust for the Appellant

Reasoning

Applying the Kiebia principles, the court found the land was clan/family land allocated to the Respondent to hold in trust. The Respondent had admitted in prior tribunal proceedings (Case No. 39 of 2003) that the land was allocated by the clan, and elders testified it was family land registered in his name at the mother's request. The prior award of 2 acres to a brother evidenced family holding. Lack of occupation by the Appellant was irrelevant per Kiebia.

p. 4
02

Whether the Tribunal's award should stand despite its lack of jurisdiction over land ownership

Holding

The award was set aside, though the proceedings were used as evidence of the land's history

Reasoning

The court noted the Tribunal lacked jurisdiction to determine ownership disputes under section 3(1) of the repealed Land Disputes Tribunals Act, which limited it to boundary, trespass, occupation and use matters. Nonetheless the prior proceedings, including the award of 2 acres to Elias Ndwiga, provided strong evidence that the land was family land held in trust.

p. 3

Legal principles established

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  • Possession or actual occupation of the land is not a requirement to establish a customary trust; the nature of the holding and the intention that the land benefit other family members are what matter
  • Proceedings before a tribunal that lacked jurisdiction over land ownership may still be used as evidence of the history of the land

Court orders

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  1. 1.The decision or award of the Land Disputes Tribunal rendered on 8/1/2009 in Case No. 149 of 2007 (Embu Award No. 14 of 2009) is set aside
  2. 2.A declaration that the Respondent holds land parcel Ngandori/Kiriari/394 in trust for the Appellant
  3. 3.The Appellant is allocated 2 acres out of the 5.5 acres remaining of the suit land (2 acres having been awarded to Elias Ndwiga)
  4. 4.Each party to bear its costs of the appeal
On appeal from
Land Disputes Tribunal (as transferred from Eastern Province Land Disputes Appeal Tribunal at Embu)
Case No. 149 of 2007 (Embu Award No. 14 of 2009)
Jurisdiction invoked
Environment and Land Court Act, 2011; Practice Directions No. 1617 of 2012 transferring pending Provincial Land Disputes Appeals Committee appeals to the ELC

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, "Njeru v Njeru (Environment and Land Appeal 91 of 2015) [2025] KEELC 5882 (KLR)", Case Analysis (2025). Case No. 149 of 2007 (Embu Award No. 14 of 2009) - appeal transferred to ELC. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5882/eng@2025-07-22

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