Charity Mutitu Njagi v Mary Wamarwa Gachoki & Agnes Wakera Kamau

respondents by their mother. Consequently, the court ordered that the appellant transfer L.R. Kabare/Gachigi/1236 to the respondents in equal shares. Background and Pleadings: 2. At the very beginning, we have Nyaga Njagi, who is married to Margaret Wanjiku Nyaga and Lucy Wakaria Mboi. Nyaga Njagi and Margaret Wanjiku Nyaga bore Agnes Makera Kamau, 2nd respondent, Mary Wamarwa Gachoki, 1st respondent, and David Njagi Nyaga. David Njagi Nyaga married Charity Mutitu Njagi, the appellant. Nyaga Njagi owned L.R. Kabare/Gachigi/244 that was, after succession of his estate subdivided to L.R. Kabare/Gachigi/1233-1237. Margaret Wanjiku Nyaga got L.R. Kabare/Gachigi/1236 and David Njagi Nyaga got L.R. Kabare/Gachigi/1237. From the pleadings in court, the respondents say they got nothing. 3. Margaret Waniku Nyaga decided to have David Njagi Nyaga as joint proprietor in L.R. Kabare/Gachigi/1236 on the 7th June, 2002, after being registered as a sole proprietor on 26th February, 2000. As fate would have it, Margaret Wanjiku Nyaga passed on, and David Njagi Nyaga moved the land registrar to have the name of his mother removed as joint proprietor of L.R. Kabare/Gachigi/1236, which was done on 16th July, 2002. OKEMWA STEVEELCLA NO. E043 OF 2024 (JUDGMENT) 2

page 2 of 21

4. On 4th August, 2019 David Njagi passed on leaving behind L.R. Kabare/Gachigi/1236 forming part of his estate. The appellant moved the magistrate’s court to have her husband’s estate distributed, wherein the respondents filed an objection as to the inclusion of L.R. Kabare/Gachigi/1236. Through a judgment dated 23 rd March, 2022 in Kerugoya Magistrates Succession 162 of 2019 Hon. G.W. Kirugumi held as follows: “I uphold the protest and direct that the issues of ownership of Kabare/Gachigi/1236 be determined first in a civil suit. The applicant is at liberty to file a fresh summons for confirmation of the undisputed estate except Kabare/Gachigi/1236 which must await a determination in a civil suit” That judgment prompted the filing of the primary suit from which this appeal emanated. 5. The respondents, as plaintiffs commenced the lower court suit by a plaint dated 17 th July, 2023 seeking for the orders that: a) A declaration that the transfer of title number L.R. Kabare/Gachigi/1236 absolutely to David Njagi Nyaga was fraudulent, null, and void. b) A declaration that Margaret Wanjiku Njagi held title number L.R. Kabare/Gachigi/1236 in trust for the plaintiffs. OKEMWA STEVEELCLA NO. E043 OF 2024 (JUDGMENT) 3

page 3 of 21

c) An order compelling the defendant to transfer title number L.R. Kabare/Gachigi/1236 to the that L.R. plaintiffs in equal shares. d) Costs of the suit and interest. 6. The respondents pleaded inter alia Kabare/Gachigi/244 was registered in the name of Nyaga Njagi, who is their father and subsequently in the name of Margaret Wanjiku Nyaga, who was to hold the land in trust for the respondents. Further to that, they pleaded that fraud had been occasioned by the late David Nyaga Njagi to have L.R. Kabare/Gachigi/1236 registered in his name as the sole proprietor. They set out the particulars of fraud to include among others the failure to disclose to the Land Registrar that Margaret Wanjiku Nyaga held L.R. Kabare/Gachigi/1236 in trust for the plaintiffs. 7. The appellant as the defendant entered an appearance and filed a statement of defense dated 31 st August, 2023, inter alia denying the respondent's claim, and asserting that his late mother, Margaret, was a joint proprietor in L.R. Kabare/Gachigi/1236, and as such he was by law the sole proprietor after her death. 8. At the hearing, the 2nd respondent was the only witness for the plaintiffs and testified as PW1. She proceeded to adopt her witness statement dated 17th July, 2023, in OKEMWA STEVEELCLA NO. E043 OF 2024 (JUDGMENT) 4

page 4 of 21

which she outlines how her father’s estate was shared between his 2 families. It further stated that an agreement was reached to have L.R. Kabare/Gachigi/1237 transferred to David Njagi Nyaga and L.R. Kabare/Gachigi/1236 registered in the name of Margaret Wanjiru Nyaga to hold in trust for the respondents. 9. On cross-examination, the 2nd respondent told the court that when the succession cause for her father’s estate was conducted, she and her sister were not present. That they had been married, and were not included in the succession cause. Further to that, the 2 nd respondent said that they were not aware of the succession proceedings. On further questioning, the 2 nd respondent told the court that it was not indicated that L.R. Kabare/Gachigi/1236 was to be held jointly between Margaret and her daughters. That the consent to have David as a joint proprietor in L.R. Kabare/Gachigi/1236 was fake for lack of inclusion of the respondents. 10. The 2nd respondent acknowledged that when their mother was alive, they never demanded land from her, and that they discovered L.R. Kabare/Gachigi/1236 had been transferred to their brother after the death of OKEMWA STEVEELCLA NO. E043 OF 2024 (JUDGMENT) 5

page 5 of 21

their mother on 18th October, 2003. That she has never gone back home since the death of her father, she doesn’t know on which parcel between L.R. Kabare/Gachigi/1236 and L.R. Kabare/Gachigi/1237, the remains of her brother, David, were interred. That the respondents have never utilized the suit land. On re-examination, the 2nd respondent reiterated that L.R. Kabare/Gachigi/1236 was to be given to the daughters, and that their brother did not tell them about the transfer. That it was only the respondents who had not benefited from their father’s land. 11. The appellant adopted her witness statement dated 31st August, 2018 as her evidence in chief. In that statement, the appellant states she is the administrator to the estate of David Njagi Nyaga. She denied the claim of trust, stating that she is aware that her late mother in law had taken her late husband to the Gichugu Land Control Board, and had him added as joint proprietor to L.R. Kabare/Gachigi/1236. She stated further that, if indeed the land was held in trust, it should have been so indicated as such on 20 th September, 2001. On cross-examination, the appellant told the court that L.R. Kabare/Gachigi/1237 was given to her through succession, and that her husband was not holding L.R. Kabare/Gachigi/1236 in trust. OKEMWA STEVEELCLA NO. E043 OF 2024 (JUDGMENT) 6

page 6 of 21

On re-examination, the appellant told the court that the family did not have any agreement to grant the plaintiffs land. Trial Court’s Judgement: 12. Upon evaluating the evidence, the learned trial magistrate found inter alia that the respondents had proved fraud, in that there was concealment in the way and manner the subsequent transfer of the land was effected after the confirmation of grant: first, into the joint names, and later to David Njagi Nyaga. Also that, the plaintiffs had led sufficient evidence to prove the existence of a trust in L.R. Kabare/Gachigi/1236, since there is lack of an explanation as to why it is only the respondents, out of all the children of the Nyaga Njagi, that did not get a share of their late father’s property. The Appeal: 13. Aggrieved by that decision, the appellant preferred the present appeal vide the memorandum of appeal dated 8th August, 2024, raising five (6) grounds, which for the purpose of this appeal are summarized as follows: OKEMWA STEVEELCLA NO. E043 OF 2024 (JUDGMENT) 7

page 7 of 21

a) That the learned trial magistrate erred by failing to evaluate the pleadings and evidence tendered in court; b) That the learned trial magistrate erred by holding that the appellant’s late husband held L.R. Kabare/Gachigi/1236 in trust for the respondent; c) That the learned trial magistrate erred by holding that there was fraud Kabare/Gachigi/1236 was in the way registered L.R. in the erred in appellant’s late husband names; and d) That the learned trial magistrate disregarding the doctrine of joint ownership. Summary of submissions: 14. The Court directed that the appeal be canvassed through written submissions. The learned counsel for the appellant filed written submissions dated 3 rd February, 2026, inter alia restating how L.R. Kabare/Gachigi/1236 could not have been held in trust for the respondents, and questioning how the trial court came up with the finding of fraud in the transfer of the suit land, absent of cogent evidence. 15. The learned counsel for the respondents filed their submissions dated 10th April, 2026, inter alia reiterating the background of this dispute. Counsel relation to further submitted that fraud in transfer and registration of L.R. Kabare/Gachigi/1236 was OKEMWA STEVEELCLA NO. E043 OF 2024 (JUDGMENT) 8

page 8 of 21

discovered on 18th October, 2003. In support of the allegation of fraud, counsel relied on the case of Selina Mecca Wekesa versus Kennedy Ellam Wekesa & 7 others [2014] KEHC 4635 (KLR), and in support of the assertion that trust existed over L.R. Kabare/Gachigi/1236, counsel relied on the case of Kiebia versus M’lintari & Another [2018] KESC 22 (KLR), to cement that the necessary elements for construing a trust existed. The respondents also relied on the persuasive decisions of this court differently constituted, being the cases of Elizabeth Njoki & Another –vs- Muthoni Muriuki & 2 Others (2015) eKLR & Ndege Kabibi Kimangi & Another v Karinga Gaciana & 12 Others (2016) eKLR. 16. The issues arising in this appeal for the court’s determinations are as follows: a) Whether Margaret Wanjiku Njagi held L.R. Kabare/Gachigi/1236 in trust for the respondents? b) Whether the registration of L.R. Kabare/Gachigi/1236 in the name of David Njagi was marred by fraud. c) Who pays the costs? 17. Having carefully considered the grounds on the memorandum of appeal, record of appeal, the learned OKEMWA STEVEELCLA NO. E043 OF 2024 (JUDGMENT) 9

page 9 of 21

counsel’s submissions, the superior court decisions cited, the court has come to the following findings: a) This being a first appeal, this Court is enjoined to reconsider, re-evaluate, and re-analyze the evidence tendered before the trial court, and draw its own independent conclusions. In undertaking that exercise however, the Court must bear in mind that it neither saw nor heard the witnesses testify, and should therefore accord due allowance to the advantage enjoyed by the trial court in assessing the demeanour, and credibility of those witnesses. b) It is trite that an appellate court will not ordinarily interfere with findings of facts unless it is demonstrated that the trial court failed to take into account particular circumstances or probabilities, misapprehended the evidence, applied wrong principles of law, or reached findings that are plainly unsupported by the evidence on record. The duty of a first appellate court was succinctly restated in the case of Selle & Another versus Associated Motor Boat Co. Ltd & Others [1968] EA 123, where the Court held inter alia that a first appeal is by way of retrial, and that the appellate court is not bound necessarily to follow the trial court's findings of fact, if it appears that the trial court failed to appreciate OKEMWA STEVEELCLA NO. E043 OF 2024 (JUDGMENT) 10

page 10 of 21

the weight of the evidence or acted on wrong principles. Whether Margaret Wanjiku Njagi held L.R. Kabare/Gachigi/1236 in trust for the respondents: c) Having dedicated the courts mind to the grounds on the memorandum of appeal, record of appeal, and the upon perusing the trial court’s file, this court has observed that the respondents had availed to the court a copy of the succession proceedings to the estate of their brother, David Njagi Nyaga, but failed to tender a copy of their late father’s succession proceedings. It is only from the Grant, in absence of an independent witness, that the court can tell under what circumstances Margaret Waniku Nyaga got registered as a trustee for the respondents over L.R. Kabare/Gachigi/1236. d) At trial court, only the 2nd respondent testified in support of their case. Succession proceedings have safeguards to have every beneficiary succeed the estate of the deceased. For example, the chief does a letter identifying all beneficiaries. There is also the requirement that all beneficiaries agree and append their signatures to the proposed mode of distribution, and then there is the confirmed grant outlining what each beneficiary gets, and who if any, should hold OKEMWA STEVEELCLA NO. E043 OF 2024 (JUDGMENT) 11

page 11 of 21

any estate in trust. It is not in dispute that each of the brothers and sisters to the respondents got a share of their father’s estates as is captured on the documents on record. e) In the persuasive authorities that this court has been referred to by the learned counsel, in particular the case of Elizabeth Njoki & Another versus Muthoni Muriuki & 2 Others (2015)eKLR, the land thereon was originally registered in the name of the plaintiffs’ father, before being wholly transferred to the plaintiffs’ mother, who later subdivided it for her sons leaving out the daughter. The situation in the present scenario is different, as L.R. Kabare/Gachigi/1236 is not a first registration, but has passed through two (2) previous sole proprietors. The respondents claim they were not aware when the succession proceedings to their father’s estate was conducted. They however, failed to tell the court what steps they took after discovery of their disinheritance, if any. f) The law does not presume existence of a trust; evidence has to be led to that effect. The Supreme Court decision in OKEMWA STEVEELCLA NO. E043 OF 2024 (JUDGMENT) the case of Kiebia versus 12

page 12 of 21

M’lintari & Another [2018] KESC 22 (KLR) is instructive on when a customary trust can arise; “ 52. Flowing from this analysis, we now declare that a customary trust, as long as the same can be proved to subsist, upon a first registration, is one of the trusts to which a registered proprietor, is subject under the proviso to Section 28 of the Registered Land Act. Under this legal regime, (now repealed), the content of such a trust can take several forms. For example, it may emerge through evidence, that part of the land, now registered, was always reserved for family or clan uses, such as burials, and other traditional rites. It could also be that other parts of the land, depending on the specific group or family setting, were reserved for various future uses, such as construction of houses and other amenities by youths graduating into manhood. The categories of a customary trust are therefore not closed. It is for the court to make a determination, on the basis of evidence, as to which category of such a trust subsists as to bind the registered proprietor.”(Emphasis Supplied). OKEMWA STEVEELCLA NO. E043 OF 2024 (JUDGMENT) 13

page 13 of 21

In the proceedings before the trial court, no evidence was led to the fact that L.R. Kabare/Gachigi/1236 is a first registration, and that Margaret Wanjiku Nyaga was registered to hold the same in trust for family or clan use. It has also not come out in evidence that L.R. Kabare/Gachigi/244, before being subdivided into L.R. Kabare/Gachigi/1233 1237, was land shackled up by customary trust. g) Following that, the court is inclined to make an adverse inference as provided for under Section 112 of the Evidence Act, Chapter 80 of Laws of Kenya. The said Section provides as follows: “112. Proof of special knowledge in civil proceedings. In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.” Under Sections 107 – 109 of the Evidence Act the burden is on whoever alleges. The said sections state: “107.Burden of proof. OKEMWA STEVEELCLA NO. E043 OF 2024 (JUDGMENT) 14

page 14 of 21

(1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2)When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 108. Incidence of burden. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 109. Proof of particular fact. The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.” The answer to the question leading to the discourse above is in the negative, that L.R. Kabare/Gachigi/1236 was not held in trust by Margaret Wanjiku Nyaga for the respondents. Whether the registration of L.R. Kabare/Gachigi/1236 in the name of David Njagi was marred by fraud: OKEMWA STEVEELCLA NO. E043 OF 2024 (JUDGMENT) 15

page 15 of 21

h) Under Section 26(1) of the Land Registration Act, No. 3 of 2012, a certificate of title is prima facie evidence of ownership, and can only be challenged on the grounds of fraud or misrepresentation to which the person is proved to be a party; or where the certificate of title has been acquired illegally, corrupt scheme. unprocedurally or through a In this case, no evidence was adduced to demonstrate that the late David Njagi Nyaga or the appellant herein had participated in any fraudulent conduct. The Court also takes note that no challenge was raised by the respondents during David Njagi Nyaga’s lifetime against his registration, despite the alleged dispute dating back to 18th October, 2003 when the alleged fraud was discovered. David Njagi Nyaga died on 4th August, 2018; that is 15 years later. The protest by the respondents to the distribution of L.R. Kabare/Gachigi/1236 in David Njagi Nyaga estate was filed on 6th October, 2020; that is 17 years after discovery of alleged fraud. i) The primary suit subject matter of this appeal was filed on 17th July, 2023 some eight (20) or so years later. It is trite that for a claim based on fraud, challenging registration of land, the time starts OKEMWA STEVEELCLA NO. E043 OF 2024 (JUDGMENT) 16

page 16 of 21

running when the said fraudulent registration is discovered. The limitation period in such claims is three (3) years. In the matter under consideration, the respondents were therefore wrong to wait for more than three (3) years before filing their claim, which is based on fraud. Their claim is therefore, caught up by the Limitation of Actions Act (Cap 22), which, at Section 4 (2), states that actions based on torts have a limitation period of three (3) years. Fraud is a category of torts. j) Even assuming the suit was filed within time, the green card in relation to L.R. Kabare/Gachigi/1236 shows that Margaret Wanjiku Nyaga was the sole registered proprietor before she and David Njagi Nyaga was added and registered as joint proprietors. A joint tenancy imparts to the joint owners, with respect to all persons other than themselves, the properties of one single owner. Although as between themselves joint tenants have separate rights, as against everyone else they are in the position of a single owner. k) Joint tenancy carries with it the right of survivorship and “four unities”. The right of survivorship (jus accrescendi) means that when one joint owner dies, OKEMWA STEVEELCLA NO. E043 OF 2024 (JUDGMENT) 17

page 17 of 21

his interest in the land passes on to the surviving joint tenant. A joint tenancy cannot pass under will or intestacy of a joint tenant so long as there is a surviving joint tenant as the right of survivorship takes precedence. The ‘four unities” that must be present in a joint tenancy are: (i) The unity of possession. (ii) The unity of interest. (iii) The unity of title. (iv) The unity of time. l) On unity of possession, each co-owner is entitled to possession of any part of the land as the other/s. One co-owner cannot point to any part of the land as his own to the exclusion of the other/s. If he could, then this would be separate ownership and not coownership. No one co-owner has a better right to the property than the other/s. Unity of interest means that the interest of each joint tenant is the same in extent, nature and duration, for in theory of law, they hold just one estate. Unity of title means that each joint tenant must claim his title to the land under the same act or document. This is satisfied, by having the joint tenants acquiring OKEMWA STEVEELCLA NO. E043 OF 2024 (JUDGMENT) 18

page 18 of 21

their rights by the same conveyance and being so registered as joint tenants. Unity of time means that the interest of each tenant must vest at the same time. m) Applying the foregoing principles on joint tenancy to this suit, it inevitably means that upon the death of Margaret Wanjiku Nyaga, which fact is not disputed, L.R. Kabare/Gachigi/1236 became the property of David Njagi Nyaga; and that cannot amount to fraud. The green cards relied upon were tendered in evidence by the respondents. In the circumstances of this case therefore, the threshold required to prove fraud has not been met, and answer in issue (b) is in the negative. n) Therefore, having independently re-evaluated the parties’ pleadings and entire evidence on record and coming to the foregoing conclusions, the court is satisfied that the learned trial magistrate did not properly apply the facts and the law, in arriving to the findings, that the respondents had established, on a balance of probabilities, that L.R. Kabare/Gachigi/1236 was held in trust by Margaret Wanjiku Nyaga for the respondents, and that transfer of L.R. Kabare/Gachigi/1236 to David Njagi Nyaga was fraudulent. The appeal is therefore merited. OKEMWA STEVEELCLA NO. E043 OF 2024 (JUDGMENT) 19

page 19 of 21

o) In view of the provisions of Section 27 of the Civil Procedure Act Chapter 21 of Laws of Kenya to the effect that cost follow the event unless where for good reasons the court orders otherwise and considering the parties familial relationship, and with a view of fostering cordial relations, the court finds this an appropriate case where each party should bear their own costs, both in the trial court and on appeal. 18. Having arrived at the foregoing determinations in this appeal, the court finds and orders as follows: a) That the appeal is merited, and is thus allowed. b) That the learned trial magistrate's judgment of 9th July 2024, and the decree arising therefrom, is hereby set aside, and substituted with an order dismissing the respondents’ suit. c) Each party to bear their own costs. Orders accordingly. DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 23RD DAY OF SEPTEMBER 2026. OKEMWA STEVEELCLA NO. E043 OF 2024 (JUDGMENT) 20

page 20 of 21

S. M. Kibunja ELC JUDGE In the presence of: Appellant – Mr. Chomba. Respondents – Mr. Njiraini for Ngigi Gichoya for Respondent. Kinyua/Charles - Court Assistant S. M. Kibunja E LC JUDGE OKEMWA STEVEELCLA NO. E043 OF 2024 (JUDGMENT) 21

page 21 of 21