Muna (Suing as the Legal Representative of the Late - Ann Wambui Muna) & 5 others v Boscardin & 5 others (Environment and Land Case 27 of 2020) [2026] KEELC 160 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled daughters inherit equally: family land subject to customary trust was ordered shared equally among all siblings.
What this practically means
#Executive summary
#Key legal issues
#Whether the counterclaim is barred by limitation, res judicata or abuse of process
The court retained jurisdiction. Trust claims have no limitation period, the previous proceedings did not determine the pleaded causes of action on the merits, and post-transmission land disputes fall to the ELC.
The court held the primary plaintiffs bore the burden of proving the res judicata elements and failed: the succession court ruling of 10/12/2018 dismissed an application without determining trust issues on the merits, and proceedings in Kitale Petition No. 5 of 2012 and the Eldoret matters were not placed before the court to show merits determination. Sections 18 and 20 of the Limitation of Actions Act exclude trust claims from limitation. Citing Njoroge v Sikuta, disputes on land registered by transmission after a confirmed grant fall to the ELC.
Whether the plaintiffs proved trespass and are entitled to the reliefs sought
The trespass claim was dismissed; the plaintiffs did not prove exclusive possession or substantiate damages and mesne profits.
The site visit report showed no dairy farming and contested occupation; PW1 appeared ignorant of basic historical facts. No valuation, crop-damage or audited accounts were produced to substantiate the claimed Kshs. 8,850,746/= annual profits or the Kshs. 12,120,000/= losses. The deceased parents were buried on the land, undermining the claim of exclusive possession, and the court found the land to be family land subject to overriding interests.
Whether the titles were subject to overriding interests (customary, constructive or resulting trust) in favour of the daughters
Yes. The land was family land acquired from ancestral land proceeds; the deceased held a fiduciary capacity and the transfer to his wife was subject to overriding interests in favour of the daughters.
The court found the suit properties were bought with proceeds of ancestral land in Kijabe by the deceased and his brother, that the deceased received 258 of 439 acres while male siblings got not more than 40 acres each, that the daughters' Kikuyu customary claim (muramati) was unrebutted, that the parents were buried on the land, and that the deceased hurriedly lifted cautions and transferred the land for love and affection within five months of the dismissal of Petition No. 5 of 2012, putting it beyond the daughters' reach.
Whether the titles were fraudulently transferred in collusion with the Land Registrar
Fraud and collusion were not proved against the transferors or the 3rd and 4th defendants; the transfer documents were never attacked as false or forged.
Fraud must be specifically pleaded and proved to a standard higher than the ordinary balance of probabilities. No complaint to police, the Registrar or the Land Control Board was evidenced; the green cards showed the cautions and court order had been withdrawn before registration; and the defendants' own witnesses (DW2, DW6) admitted having no evidence of fraud. However, absence of due diligence by the transferee meant she could not claim innocent purchaser protection.
Gender discrimination in distribution of the estate
The certificate of confirmation distributing the estate only to male children cannot defeat daughters' equal inheritance rights; such customary exclusion is unconstitutional.
Relying on Article 27 and Article 60(f) of the Constitution, Rono v Rono, Re Estate of Tapoya Amuruk Silaure and Fatuma Athman Abud Faraj, the court held that marital status or gender is no basis to deny a daughter inheritance, and that retrogressive customs locking out daughters are repugnant to justice and morality. However, redistribution of the estate itself belongs to the probate court, so the court confined itself to declaratory relief over the land.
Legal principles established
#- Customary trusts are overriding interests under Section 28 of the Land Registration Act and are proved on the merits and the quality of evidence; where the five Kiebia elements are met, the trust binds the registered owner whether or not noted in the register.
- A claim based on customary trust under Section 20 of the Limitation of Actions Act is not subject to any period of limitation.
- Daughters cannot be excluded from inheritance on account of gender or marital status under the 2010 Constitution.
- Disputes based on customary trust arising post-transmission must be addressed in the Environment and Land Court, not the probate court.
- A transferee who takes land for no value takes it with all equitable burdens and must demonstrate due diligence and good faith to plead innocent title.
Court orders
#- 1.The plaintiffs' claim dated 31/7/2025 is dismissed.
- 2.The 1st, 3rd, 4th, 5th, and 6th defendants' amended counterclaim dated 10/1/2025 is allowed in terms of prayers (c) and (d) only; the rest of the prayers are dismissed.
- 3.The land comprised in the radius of 300 metres surrounding the homestead of the late Clement Munga Muna and the late Milka Mwihaki shall remain family land belonging to the 1st-5th plaintiffs in the main suit, the plaintiffs and the 1st and 2nd defendants in the counterclaim.
- 4.The rest of the land comprised in the suit properties outside the referenced family land shall be shared equally among the 1st-5th plaintiffs in the main suit and all the plaintiffs in the counterclaim.
- 5.From the date of the judgment there shall be unlimited use, occupation, and access to the suit properties declared to be family land, by the 1st-5th plaintiffs in the main suit, the plaintiffs, and the 1st and 2nd defendants in the counterclaim.
- 6.There shall be no order as to costs.
- Jurisdiction invoked
- Article 162(2) of the Constitution and Section 13 of the Environment and Land Court Act - disputes on land registered by transmission after a confirmed grant fall to the ELC
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Muna (Suing as the Legal Representative of the Late - Ann Wambui Muna) & 5 others v Boscardin & 5 others (Environment and Land Case 27 of 2020) [2026] KEELC 160 (KLR)", Case Analysis (2026). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/160/eng@2026-01-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.