Francis Maina Mwangi v Jane Mwihaki Kuria

(v) in her analysis and summary of evidence including extraneous and incredible evidence to favour the Plaintiff(Respondent) while exhibiting the what indifference to the evidence of the defence; (vi) in shifting the entire burden of proof on the defence throughout the trial thus erring on the incidence of burden in law in particular sections 107 and 108 of the Evidence Act thus reached a wrong analysis, findings and judgment and fact; (vii) in her finding that land parcel No. Loc.8/Theri/335 was encumbered by trust as family and ancestral land whereas the truth was land in the proceedings and evidence that what amount to family and trust properties were pieces of land in the name of Chege Maina, the deceased Patriarch of the family and (viii) by her failure to note and find that there were no possessory rights to corroborate a trust and based on the entire evidence in the trial, trust which is both a matter of law and fact was not sufficiently proved. 2) The facts of the case according to the Respondent who was the 1 st Plaintiff in Murang’a CM’s Court Case No. ELC E084 of 2024 are as follows. Firstly, the Appellant is a brother to the Respondent’s father one Kuria Chege who is now deceased. Her grandfather Chege Maina had two wives. They were Mugure Chege and Wangari Chege. Mugure had five daughters and three sons while Wangari had three daughters and one son. Mugure’s Children were Mwangi, Kuria, Ngare, Wanjiku, Munjiru,Njeri, Watiri and Nyagachu. Wangari’s Children were Mwangi, Munjiru Wanjiku and Watiri. Secondly, the Respondent’s father was Kuria Chege who is now deceased. Thirdly, her grandfather had two parcels of land. One was at Theri and the other was at Kairichi Scheme. The land at Theri was subdivided into two parcels which are Loc. 8/Theri 335 and 336. The land at Kairichi was Loc.8/GituraKairichi/129. Land parcel No. 335 was given to Mwangi Chege Senior while land parcel No. 336 was given to Mwangi Chege Evan. Each was to hold in trust for himself and his respective family. Land parcel No. Kirichi 129 was also shared between the two families of Mugure and Wangari. Mwangi Chege Senior was to get one half while the other half was for the family of Mugure Chege. The family of Mugure Chege had three sons namely Kuria and Ngure. Fourthly, Kuria Chege and Ngure Chege agreed to exchange their shares such that Kuria Chege would get Ngure’s share of land parcel No. 335 while Ngure would take Kuria’s share of Kairichi 129. After the exchange Ngure sold his share and Kuria’s share at land MRG ELCLA E042 OF 2025 2J of 7

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parcel No. Kairichi to Mwangi Chege Evan and migrated to the Rift valley. The result was that land parcel No. Kairichi 129 is now occupied and utilized by the family of Mwangi Chege Evan. Fifthly, Kuria Chege settled on land parcel No. Theri 335 in the year 1969 until his demise. He is entitled to half of share of the suit land. After occupying half of the suit land, the built a permanent house, planted both tea and coffee and brought up his children including the Respondent on the land. Sixthly, on 26-5-2014, the Appellant denied the Respondent access to the land despite Court orders. His siblings destroyed Kuria Chege’s house and took over his tea and coffee plantations by force. Seventhly, the Respondent’s parents Kuria Chege and Esther Wambui are buried on the suit land and Mwangi Chege holds the land in trust for himself and Kuria Chege. The whole family of Chege Maina is aware of this trust. Finally, the Defendant and his siblings filed Murang’a CM’S Succession Cause No. 202 of 1998. Kuria Chege lodged an objection in the cause. The trial magistrate acknowledged that there was a customary trust in favour of Kuria Chege but had no jurisdiction to deal with the issue of trust. 3) The facts of the case according to the Appellant are as follows. One, the suit land is not encumbered by any trust in favour of Kuria Chege and it has never been owned by Chege Maina. Secondly, the Respondent’s parents were buried on the suit land contrary to chiefs directives and against the will of the Appellant. 4) In her judgment dated 16-10-2025, the learned trial magistrate found in favour of the Respondent for the reasons that the Respondent had proved the existence of a customary trust in favour of her father. 5) I have carefully considered the appeal in its entirety including the eight grounds, the entire record, the issues raised in the written submissions and the law cited therein. Order 15 rule 2 of the Civil Procedure Rules mandates the court to frame issues. It provides as follows. 2. “ The Court may frame the issues from all or any of the following materials(a) allegations made on oath by the parties, or by any persons present on their behalf, or made by the advocates for such parties; MRG ELCLA E042 OF 2025 3J of 7

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(b) allegations made in the pleading or in answers to interrogatories delivered in the suit; ( c) the contents of documents produced by either party.” In this case, I will frame the issues from the eight grounds filed by the Appellant. (i) Whether the learned trial magistrate erred in finding that land parcel Number Loc.8/Theri/335 was encumbered by a trust. (ii) Whether the suit was res judicata because of Succession Cause No. 202 of 1998. (iii) Whether the Respondent discharged the burden of proof placed upon her by the law. (iv) Whether there was any extraneous evidence relied on by the trial court. (v) Whether the burden of proof has ever shifted to the Appellant. (vi) Whether the Respondent’s family ever had possession of the suit land. 6) This being a first appeal, this Court has a duty to reconsider, re-evaluate and re-analyse all the evidence on record and draw its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify and give due allowance for that disadvantage. See Selle and Another vs. Associated Motor Boat. Co. Ltd and Others 1968 EA 123. 7) Looking at the first issue, I find that the learned trial magistrate did not err in her finding that a customary trust existed in all the circumstances of the case. All the main essentials of a customary trust exist in this case. The suit land was clan or family land before registration. The first registered owner Mwangi Chege Senior got registered as the owner of the suit land because of his ancestry. Not every person would get land in Theri area. Only those born there could get land in the area. He was also the first born son of this mother and the Respondent’s father Kuria Chege was his younger brother. The fact that the two belong to the same parents deepens the presumption of the trust. The fact that the Respondent’s father lived on the suit land all his life and is buried on it together with his wife deepens the trust even further. MRG ELCLA E042 OF 2025 4J of 7

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8) As regard the second issue of the lower court suit being res judicata because of the succession cause No. 2020 of 1988, I find that it was not res judicata for the following reasons. The succession court is mainly concerned with the identification of a deceased persons estate and his dependants and who is entitled to inherit his property. The Environment and Land Court is concerned with use, occupation and title to land and its ownership beyond the title deed itself and more so rights which may not necessarily be noted on the register because they override the register. The succession cause had no jurisdiction to deal with the issue of a customary trust which is the bedrock of the Respondent’s claim. Two, in the pleadings, there was no mention of the doctrine of res judicata . It is nowhere in the written statement of defence. Order 2 rule 6(1) of the Civil Procedure Act provides as follows. “No party may in any pleading make an allegation of fact or raise any new ground of claim inconsistent with a previous pleading in the same suit.” Raising the issue of res judicata abruptly in the appeal when it was not anywhere in the pleadings amounts to an ambush and derogates from a fair hearing as contemplated in Article 50(1) of the Constitution. 9) It is my finding in regard to the third issue that the Respondent did more than was required of her by preponderating her case beyond the normal standard of proof on a margin of probabilities. Firstly, the Respondent filed a detailed witness statement which runs into two pages. It gives the family history in minute detail from the grandfather, his wives, their Children, their land parcels, how they were shared between the four sons and much more. Secondly, her evidence is corroborated sufficiently in all the material particulars by independent evidence of two other witness, namely Faith Wanjiku Muriuki and Samson Chege Mwangi. Thirdly, the Appellant did not file any witness statement. I have checked the lower court file and found none. The record of appeal contains none and even the judgment of the learned trial magistrate does not mention any witness statement by the Appellant. The only thing I see in the record of appeal is a two page statement of defence which is a mere denial of the Respondent’s case without offering any real defence that engages the facts pleaded by the Respondent. MRG ELCLA E042 OF 2025 5J of 7

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10) As for the fourth issue, I have not seen any extraneous evidence relied on by the trial Court because the evidence adduced by the Respondent was more than sufficient to prove her case. In the same vein as regards the fifth issue, there was no need to shift the burden to the Appellant because the Respondent had more than sufficient evidence. The Appellant said almost nothing in defence. In fact most of what he said was in his answers in crossexamination and from his answers, I can see that the questions posed were relevant and admissible. In any event under Section 146(2) of the Evidence Act, cross-examination need not be confined to the facts to which the witness testified in his examination in chief. There is nothing in the judgment to show that any burden was placed by the trial court on the Appellant to prove anything. 11) It is admitted by the Appellant that the Respondent’s parents are buried on the suit land. This can be seen at paragraph 7 of the defence dated 28-1-2025 where he states as follows in the second sentence, “ The Defendant further avers that Kuria Chege and his wife Esther Wambui Kuria were buried against our will and contrary to the Chief’s directives.” This is proof that the Respondent’s parents occupied the suit land otherwise they would not have been buried on it. Finally on this point, I have seen a judgment at page 61 of the record of appeal written by the late Nyaga Njagi and dated 2-12-1994 when he was a Senior Resident Magistrate. At the fifth line from the bottom, the judgment reads, “ The Petitioner asserts that Kuria Chege is not entitled to inherit any share as he has already settled in land parcel No. Loc. 8/Theri/335 registered in the name of Mwangi Chege Senior, the father to the Objectors.” This is further proof that the Respondent’s father occupied the suit land as narrated by the Respondent and her witnesses. 12) In conclusion and for the reasons given, I find no merit at all in the appeal. I dismiss it with costs and direct that the judgment and decree of in ELC Case No. E084/2024, Murang’a CM’s Court be implemented in full. It is so ordered. Dated, Signed and Delivered virtually at Murang’a this 22nd day of September, 2026. MRG ELCLA E042 OF 2025 6J of 7

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M.N. GICHERU JUDGE. Delivered online in the presence of; Court Assistant – Antony Appellant’s Counsel – Mr. Kirubi Respondent’s Counsel – Absent MRG ELCLA E042 OF 2025 7J of 7

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