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ELCPartially AllowedNot stated in the judgment

Njoroge v Njoroge (Environment and Land Appeal E064 of 2024) [2026] KEELC 3757 (KLR)

High Court of Kenya
17 June 2026
4,109 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~16 min to read original · ~4 min brief

The bottom line

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A Kenyan grandmother won her appeal: her grandson holds family land subject to a customary trust protecting her daughters' inheritance rights.

What this practically means

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Executive summary

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This is a first appeal to the High Court at Thika (Mogeni J) against the judgment of Hon. M. Sudi PM delivered on 19/06/2024, which dismissed the Appellant's claim over land parcel Ndumberi/Tinganga/2287, declared the Respondent and Elizabeth Wanjiru Njoroge bona fide co-owners, issued a permanent injunction against the Appellant, and directed partition into two equal portions. The Appellant, grandmother of the Respondent, had transferred the land to the Respondent and her daughter, contending it was either a donatio mortis causa or held on customary trust for her daughters, who feared disinheritance. The appellate court condensed the appeal into two issues: whether the trial magistrate erred in failing to find a customary trust, and what orders should issue. The Court found the donatio mortis causa limb dispositive against the Appellant given PW1's own concession of no contemplation of death, but held the trial magistrate erred on customary trust: Section 28(b) of the Land Registration Act makes customary trusts overriding interests requiring no register notation, and indefeasibility under Section 26 cannot defeat them. Guided by the Supreme Court's principles in Isack M'inanga Kiebia, the Court declared the Respondent holds subject to a customary trust in favour of the Appellant's daughters. It further set aside the partition order (made without hearing non-party co-owner Elizabeth Wanjiru Njoroge, violating natural justice) and the permanent injunction against the Appellant as unpleaded. The appeal was allowed in part, with each party bearing their own costs as a family matter. The Appellant was granted liberty to remain in occupation pending resolution of the daughters' beneficial interests.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the learned trial magistrate erred in not finding the Respondent held the suit property in customary trust for the daughters of the Appellant
  2. 2.What orders should be issued

Key legal issues

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01

Whether a donatio mortis causa was established

Holding

Not established; PW1 conceded there was no evidence the transfer was made in contemplation of death, which was fatal to that limb

Reasoning

The Court held the requirements of Section 31 of the Law of Succession Act are conjunctive. PW1's own admission that there was no evidence of contemplation of death was dispositive. Passage of seventeen years, the Respondent's residence on the land, and inability to cure the concession with Section 62 of the Evidence Act all weighed against the claim. The magistrate's reliance on English authority was criticised but did not vitiate the finding.

p. 5
02

Whether a customary trust existed over Ndumberi/Tinganga/2287

Holding

Yes; the trial magistrate erred in demanding documentary proof and in assuming daughters were excluded by marriage; a customary trust in favour of the Appellant's daughters was declared

Reasoning

Relying on Section 28(b) LRA and the Supreme Court's principles in Isack M'inanga Kiebia v Isaaya Theuri M'lintari, the Court found the family land, the close family relationship, the donor's continued occupation and the Respondent's peaceful acquiescence consistent with a customary trust and inconsistent with an absolute transfer. Discriminatory exclusion of married daughters offends Article 27.

p. 6
03

Whether the trial magistrate's orders for partition and permanent injunction were proper

Holding

Improperly granted; the partition order affected a non-party co-owner without a hearing, and the injunction was not pleaded in the terms granted

Reasoning

Elizabeth Wanjiru Njoroge, a registered co-owner, was not joined; an order compelling subdivision of her property violated natural justice and was set aside for want of jurisdiction. The permanent injunction against the Appellant offended the principle that courts are bound by the reliefs pleaded.

p. 7

Legal principles established

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  • Customary trusts are non-registrable overriding interests under Section 28(b) of the Land Registration Act which bind registered land without notation on the register
  • Indefeasibility of title under Section 26 of the Land Registration Act is subject to overriding interests and cannot defeat a customary trust
  • A valid donatio mortis causa under Section 31 of the Law of Succession Act requires conjunctive proof of contemplation of death, delivery, and reversion
  • A court order affecting a non-party's rights without a hearing violates natural justice and is null and void

Court orders

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  1. 1.The appeal is allowed in part
  2. 2.The finding of the trial magistrate that the suit property Ndumberi/Tinganga/2287 was transferred to the Respondent as an absolute gift inter vivos is set aside
  3. 3.It is declared that the Respondent holds his interest in land parcel Ndumberi/Tinganga/2287 subject to a customary trust in favour of the daughters of the Appellant, as an overriding interest within Section 28(b) of the Land Registration Act, and subject to Sections 24 and 26 of the same Act
  4. 4.The order of the trial magistrate directing partition of the suit property into two equal portions is set aside for want of jurisdiction, having been made without affording a hearing to Elizabeth Wanjiru Njoroge, a registered co-owner and necessary party
  5. 5.The permanent injunction issued by the trial magistrate restraining the Appellant is set aside
  6. 6.The Respondent and Elizabeth Wanjiru Njoroge are restrained from selling, charging, transferring or otherwise alienating the suit property in a manner prejudicial to the customary trust interests of the Appellant's daughters
  7. 7.The Appellant is at liberty to remain in occupation of the suit property pending resolution of the beneficial interests of all the Appellant's daughters
  8. 8.Each party shall bear their own costs of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Principal Magistrate's Court
Not stated in the judgment
Jurisdiction invoked
First appellate jurisdiction under Order 42 Rule 32 of the Civil Procedure Rules

Relief refused

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Full setting aside of the trial judgment and a declaration of customary trust over the whole transfer (the appeal only succeeded in part)

The Court found no proof of donatio mortis causa but recognised a customary trust; the gift inter vivos finding was set aside only in part

p. 7

Costs

Each party shall bear their own costs of this appeal, this being a family matter

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

i. The appeal is hereby allowed in part.
p. 8disposition
It is hereby declared that the Respondent holds his interest in land parcel Ndumberi/ Tinganga/2287 subject to a customary trust in favour of the daughters of the Appellant
p. 8customary trust declaration
The order of the trial magistrate directing the partition of land parcel Ndumberi/ Tinganga/2287 into two equal portions is hereby set aside for want of jurisdiction
p. 8natural justice - non-party
The Appellant is at liberty to remain in occupation of land parcel Ndumberi/ Tinganga/2287 pending the resolution of the beneficial interests of all the daughters of the Appellant.
p. 8occupation pending resolution
viii. Each party shall bear their own costs of this appeal, this being a family matter.
p. 8costs
Section 28(b) of the Land Registration Act is unambiguous: all registered land is subject to overriding interests, which expressly include customary trusts
p. 6overriding interests

Issues in the judgment

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minor

Inconsistent dates of transfer: paragraph 1 states the transfer was on or about 9/07/2001, while the Appellant's submissions state February 2002 and the Respondent's defence pleads 2005 with title issued 10/01/2005

minor

No case number or party names for the appeal appear on the face of the judgment

minor

Citation of the Supreme Court decision appears in two inconsistent forms (Kiebia v M'lintari [2018] KESC 22 and Isack M'inanga Kiebia v Isaaya Theuri M'lintari [2018] eKLR)

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, "Njoroge v Njoroge (Environment and Land Appeal E064 of 2024) [2026] KEELC 3757 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3757/eng@2026-06-17

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