Milka Njeri Thuo & another v Pauline Wangari Gikera & another

Loc.2/Kinyona/94 was illegally subdivided despite the fact that the registered owner Kigera Mwangi was deceased yet no Succession proceedings had taken place. The illegal subdivision created the two suit parcels, Loc.2/Kinyona/4191 and 4192. Land parcel No. Loc.2/Kinyona/94 did not belong to Kigera Mwangi alone but he held it in trust for his brothers Mwangi Ng’ang’a and Ng’ang’a Mwangi who are deceased but are represented by their Widow and Son respectively who are the Plaintiffs in this case. The two siblings of Kigera Mwangi who are Mwangi Ng’ang’a and Ng’ang’a Mwangi lived on their portions each of which measured 2.2 acres respectively. Land parcel No. Loc.2/Kinyona/94 measured 6.6 acres. Three, there has never been any issue as to the occupation of the 4.4 acres by the deceased Mwangi Ng’ang’a and Ng’ang’a Mwangi. They built permanent structures on the 4.4 acres that they both occupied. The occupation of the 4.4 acres was for a period in excess of 12 years. Four, the Applicants now pray that the court finds that they are entitled to the suit land through the doctrine of adverse possession. (3)In support of their cases, the Plaintiffs filed the following evidence. (a) Supporting affidavit dated 13-12-2024. (b) Copy of certificate of official search for L.R. No. 4191 dated 12-9-2022 showing Mwangi Gikera as the registered owner. (c) Copy of certificate of official search for land parcel No. Loc.2/Kinyona/4191 showing Mwangi Gikera as the registered owner. It is dated 2-8-2022. (d) Copies of certificates of official search for L.R. No. 4192 dated 2-8-2022 and 6-92022 showing Pauline Wangari Gikera as the registered owner. (e) Witness statements by the Plaintiffs dated 20-2-2026. (4) The Defendants’ case is as follows. One, the originating summons is res judicata because the dispute has already been resolved vide a ruling dated 26-8-2024 in Murang’a ELC Case No. 72 of 2017. Two, the Defendants are the lawfully registered owners of the two land parcels in question and the subdivision of land parcel No. Loc.2/Kinyona/94 into Loc.2/Kinyona/4191 and 4192 was in accordance with the law. Three, land parcel no. Loc.2/Kinyona/94 was not a gift and it was not held in trust by Kigera Mwangi for the Mwangi Ng’ang’a and Ng’ang’a Mwangi, now deceased. Four, it is not true to say that the Plaintiffs have been in open, MRG ELCOS EOO3 OF 2025 2J of 8

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continuous and peaceful occupation of the suit for a period of more than twelve (12) years. Instead it is the Defendants who have been in occupation of the suit property at all the material times. Five, the ownership of the suit land had earlier been determined in Thika Chief Magistrates Civil Case No. 30 of 1990. (5)In support of their case, the Defendants filed the following evidence. (a) Replying affidavit dated 28-3-2025. (b) Copy of ruling dated 26-8-2024 in ELC Murang’a case No. 72 of 2017. (c) Copies of title deed for land parcels numbers Loc.2/Kinyona/4191, 4192 and 94 dated 9-8-2016, 9-8-2016 and 12-9-2014 respectively. (d) Further supplementary affidavit by Mwangi Gikera dated 30-10-2025. (e) Copy of proceedings and judgment in Kigumo Land Disputes Tribunal Case No. 192/2004. (f) Copy of determination in Provincial Land Appeal Tribunal Case No. Maragua 12/2005 dated 30-4-2009. (g) Proceedings and judgment in Thika RM’s Case No. 30 of 1990 dated 31-1-1995. (h) Copy of judgment in Nyeri High Court Appeal Case No. 68B of 2009 dated 21-22014. (i) Proceedings in Murang’a SPM Civil Case No. 37 of 1997. (j) Further supplementary affidavit by the 1st Defendant dated 30-4-2025. (k) Copy of proceedings in Murang;a ELC Case No. 72 of 2017, formerly Kerugoya ELC Case No. 93 OF 2014. (l) Copy of decree in Thika Civil Case No. 30 of 1990 dated 31-8-2007. (m) Copy of ruling dated 28-11-2018 in ELC Murang’a Case No. 72 of 2017. (6) At the trial on 3-6-2026 and 1-7-2026, the parties reiterated their positions taken in the pleadings. According to the Plaintiffs, land parcel Loc.2/Kinyona/94 belonged to Wambui Mwangi who had three sons, Ng’ang’a, Mwangi and Gikera. The land measures 6.6 acreas and each son should get 2.2 acres. The Plaintiffs, occupy the land and they should get their fair shares because they have even buried their dead on the land. For example the husband of the first Plaintiff, Mwangi is buried on his part of the suit land. The neighbours built a house MRG ELCOS EOO3 OF 2025 3J of 8

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of drums for her after her mud walled house collapsed. She plucks the tea on the land which she takes to Ikumbi tea factory. On the other hand, the Defendants’ case is that the Plaintiffs have not occupied the suit land for twelve (12) years as alleged. They are not entitled to a share of the suit land because they had their own land which they sold. (7)Counsel for the parties filed written submissions dated 23rd and 30th July 2026 respectively. The Defendants’ counsel did not frame any issues. The Plaintiff’s counsel framed the following five (5) issues (i) Whether the suit is res judicata and/or otherwise barred by any decision of a competent Court or tribunal. (ii) Whether the suit property is family/ancestral land held by Gikera Mwangi, and now by the Defendants as his successors in title upon a customary trust for the benefit of, inter alia, the Plaintiffs. (iii) Whether the Plaintiffs have proved adverse possession over the 4.4.acres in issue. (iv) Whether, independently of any finding on adverse possession, the Plaintiffs are entitled to registration of 2.2.acres each by customary trust. (v) Whether the Plaintiffs are entitled to all the prayers and costs . (8)I have carefully considered all the evidence adduced in this case by both sides including the Affidavits, the witness statements, the grounds of opposition, the written submissions and the issues identified therein as well as the law cited. Under Order 15 rule 2 of the Civil Procedure Rules, the Court is mandated to frame issues for determination. It provides as follows. 2. “The Court may frame issues from all or any of the following materials(a) allegations made on oath by the parties, or by persons present on their behalf, or made by the advocates of such parties; (b) allegations made in the pleadings or in answers to interrogatories delivered in the suit; ( c) the contents of documents produced by either party.” MRG ELCOS EOO3 OF 2025 4J of 8

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Relying on materials on record filed by the parties including their pleadings, documents and testimony in Court. I find that the following issues arise. (a) Whether Gikera Mwangi held land parcel No. Loc. 2/Kinyona/94 in trust for his brothers Ng’ang’a and Mwangi. (b) Whether the issue of trust has even been determined by any Court of competent jurisdiction. (c) Whether this court has jurisdiction to deal with the issue of customary trust. (d) Whether the Plaintiffs have proved that they are entitled to the suit land by way of adverse possession. (9) Beginning with the second issue, it is my finding that the issue of trust has never been heard by any Court of competent jurisdiction. The only forum where the parties testified in relation to the customary trust was before the Land Disputes Tribunal in Kigumo Case No. D.L.T 192/04. The tribunal decided that each of the three sons of Wambui Mwangi should get 2.2 acres of the suit land. This decision was upheld by Provincial Land Appeals Tribunal in claim No. Maragua 12/2005 in decision dated 30-4-2009. When the 1 st Defendant’s husband appealed in Nyeri Civil Appeal No. 68B of 2009, the decisions of the Kigumo Land Disputes Tribunal were set aside on the ground of land of jurisdiction on 21-2-2014. A critical look at the decision in the Resident Magistrate’s Court at Thika in Civil Case No. 30 of 1990 Shows that the 1st Defendant’s husband Gikera Mwangi alias Kigera Mwangi sought to injunct his brother Mwangi Ng’ang’a , the husband to the 1st Plaintiff from land parcel No. Loc.2/Kinyona/94 because the said Gikera Mwangi was the registered owner. At Paragraph 2 of the judgment dated 31-1-1995, it states as follows. “ The Defendant was served with the hearing notice herein but he refused to respond in any way. He did not come for the hearing so the matter proceeded in way of formal proof.” (10) Murang’a SPM Civil Case No. 37 of 1997 was consolidated with case No. 30 of 1990 through an order dated 30-6-2006. The Court held in part. “ I find Civil Suit No. 37 of 1997 is res judicata. Parties to proceed with Civil Suit No. 30 of 1990 for hearing.” MRG ELCOS EOO3 OF 2025 5J of 8

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(11) In Murang’a ELC Case No. 72 of 2017 the Plaintiff was never heard on merit because the court in its ruling of 28-11-2018 found that the suit was res judicata. When the Plaintiffs sought review of the ruling dated 28-11-2018 their application for review was dismissed on 26-8-2024. There is therefore no evidence that the issue of customary trust has never been adjudicated upon by any Court of competent jurisdiction. This is the first time that the issue is being addressed by any court, other than the Land Disputes Tribunal at Kigumo. (12) Looking at the first issue, I have no doubt in my mind that the land belonged to Wambui Mwangi who was the mother to Gikera, Ng’ang’a and Mwangi. It is stated in the proceedings before the tribunal at Kigumo that their father died in the year 1923, long before they were born and it is their mother who consolidated the land. Since the land belonged to the mother, it is not fair for only one son to inherit the whole land. The tribunal at Kigumo was therefore right to order that each son gets 2.2 acres. All the essentials of a customary trust exist in this case. The land belonged to Wambui Mwangi who is the mother to all the three sons. The two Plaintiffs represent the two sons who were deprived of their share of the suit land by the husband and the father of the two Defendants. The relationship between the parties is very close because they are all brothers. The other sons namely Ng’ang’a and Mwangi could also have been registered as owners of the land but they were away in Nakuru and elsewhere. Finally, the claim is against the family of Gikera Mwangi because he should have shared the suit land with his brothers. (13) Coming now to the third issue, I find that this court has the requisite jurisdiction to determine the issue of customary trust because this is an overriding interest under Section 28(b) of the Land Registration Act (Act No. 3 of 2012). The Plaintiffs seeks to use, own and to continue occupying the suit land. The claim by the Plaintiffs is therefore at the core of this court’s jurisdiction established under Article 162(2) (b) and Section 13 of the Environment and Land Court Act ( Act No. 19 of 2011). (14) As for the final question of the Plaintiffs being entitled to the suit land through the doctrine of adverse possession, I find that they are so entitled. Both Plaintiffs have proved that they are in occupation of the suit land where they have property including houses and crops MRG ELCOS EOO3 OF 2025 6J of 8

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including cash crops like tea. This evidence is uncontroverted by any evidence from the Defendants. The first Plaintiff was very convincing in her testimony as to how she has occupied the suit land with the help of neighbours who have even built a house for her. I believe this evidence. I find that her occupation of the suit land is adverse to the title deeds held by the Plaintiffs and their occupation has been without permission, without force and as of right as the children of the original owner, Wambui Mwangi. (15) I have one more finding in relation to the customary trust. It was one of the holdings in the supreme court decision in the case of Isack M’Inanga Kiebia vs. Isaya Theuri M’Lintari and another Petition No. 10 of 2015[2018] EKLR, that a beneficiary of a customary trust does not have to be in actual possession or occupation of the land in order for the Court to declare that he or she is entitled to an interest under the trust. This decision was subsequently reaffirmed by the Court of Appeal in the case of Muraguri and 5 Others vs. Macharia Civil Appeal No. 193 of 2018 [2023] 384 KLR where the court stated that “ following kiebia, possession, or occupation or usage of the land is no longer a requirement to establish a customary trust.” This means that even if the family of Ng’ang’a which is said to have lived in Nakuru does not occupy the suit land, they are still entitled to a share of it by virtue of being the grand children of Wambui Mwangi, the original owner of the L.R. No.Loc.2/Kinyona/94. (16) In conclusion and for the reasons already given, I enter judgment for the Plaintiffs against the Defendants in the following terms. 1. The title deeds for land parcel numbers Loc.2/Kinyona/4191 and 4192 are hereby revoked. 2. The original title No. Loc.2/Kinyona/94 to be reinstated. 3. Land parcel No. Loc.2/Kinyona/94 to be subdivided into three equal shares. The first share to be registered in the name of Milka Njeri Thuo for the family of the late Mwangi. The 2nd share to be registered in the name of Simon Maina Ng’ang’a in trust for the family of Ng’ang’a. The 3rd share to be registered in the name of Pauline Wangari Gikera in trust for the family of Gikera Mwangi. MRG ELCOS EOO3 OF 2025 7J of 8

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4. Each family to be allocated the part that they have occupied or buried their kin as far as it is practicable. 5. The Deputy Registrar of this Court is authorized to execute any document or instrument that is necessary to give effect to the above orders. 6. Each party to bear its own costs. It is so ordered. Dated, Signed and Delivered virtually at Murang’a this 22nd day of September, 2026. M.N. GICHERU JUDGE. Delivered online in the presence of; Court Assistant - Antony Plaintiff’s Counsel – Mr. Mwika Defendants’ Counsel – Mr. Makura MRG ELCOS EOO3 OF 2025 8J of 8

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