Ngaire & 2 others v Gachiani

By way of his counterclaim, he seeks for a declaration that the suit property belongs to him exclusively and an order for the eviction of the 1st and 2nd Plaintis from the suit property or any of its resultant subdivisions. The Plaintis'Pleadings: 3. The Plaintis' avers inter alia that the Defendant is the registered proprietor of Land Parcel No. Mwerua/Gitaku/533, which, according to them, was originally family land allocated to their late father, Michel Karuga Ngaire, during the land adjudication and demarcation process while he was still a minor. They aver that following the demise of their parents, the Defendant, being the eldest son in the family, caused the suit property to be registered in his name to hold it on behalf of the family. They maintain that the registration was never intended to confer absolute ownership upon the Defendant but was merely for convenience, with the understanding that he would hold the land in trust for himself and his siblings. 4. According to the Plaintis, they have occupied and lived on the suit property since its allocation and have established their homes there with their families. They state that the land has always been treated as family land and has remained the only home known to successive generations of their family. Their grievance is that sometime in the year 2022, the Defendant subdivided the suit property and caused the resultant parcels to be registered in his own name before threatening to dispose them to third parties. They further aver that the Defendant persistently sought the removal of a caution lodged against the title in order to facilitate the intended sale. They contend that those actions were undertaken in breach of the trust under which the Defendant held the land. 5. The Plaintis state that, despite attempts to resolve the dispute amicably, the Defendant has refused to recognise their benecial interests in the suit property. They therefore pray for: a. A declaration that the Defendant holds the suit property in trust for himself and the Plaintis; b. An order for the subdivision of the land and registration of the portions thereof as follows: c. i. Barnabus Gachiani and Jemimah Wanjiku Ngaire – 1 acre each; ii. Grace Muthoni Karuga and Grace Muthoni Ngigi – 1.75 acres each. They also seek the costs of the suit. The Defendant's Pleadings: 6. In his pleadings, the Defendant inter alia denied that he holds the suit property in trust for the Plaintis. His position is that Land Parcel No. Mwerua/Gitaku/533 was jointly registered in his name and that of Alice Kanugu as absolute proprietors. He contends that upon the death of Alice Kanugu on or about 16th March 2018, her interest devolved to him by operation of law, thereby making him the sole and absolute proprietor of the suit property. 7. The Defendant maintains that, as the registered owner, he was entitled to subdivide the land in the exercise of his proprietary rights and did so before the institution of this suit for purposes of eective https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5689/eng@2026-09-23 2

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management. He therefore denies that the Plaintis have any legal or equitable interest capable of supporting a claim founded on trust. 8. In his counterclaim, the Defendant reiterates that the suit property belongs exclusively to him. He further avers that following the death of Alice Kanugu, the 1st and 2nd Plaintis unlawfully entered portions of the suit property and have remained there without his consent, thereby interfering with his peaceful use and enjoyment of the land. He consequently prays for: a. The dismissal of the Plaintis' suit with costs. b. A declaration that the suit property is his exclusive property. c. An order evicting the 1st and 2nd Plaintis from the suit property or any of its resultant subdivisions. d. He be awarded costs in the counterclaim. Evidence of the Plaintis: 9. The hearing commenced on 18th March 2025, when the Plaintis called Grace Muthoni Karuga, who testied as PW1. She adopted her witness statement dated 5th August 2022 as her evidence in chief and produced the documents contained in the Plaintis' List of Documents of the same date. She testied that the suit property belonged to her late father, Michael Karuga Ngaire, who had been allocated it by the clan during the adjudication process. She stated that their family comprised nine children, with the Defendant being her elder brother and the fourth born. According to her, the Defendant had been separately allocated land by the clan and was entitled only to one acre of the suit property, which had been given to him by their late mother. She accused the Defendant of unlawfully taking the entire parcel, subdividing it in the year 2022, and claiming exclusive ownership thereof. She maintained that she has always resided on the suit property and urged the court to restore the land that belonged to their late parents to the family. 10. During cross-examination, PW1 gave a detailed account of the suit property's history. She testied that the original family land was Land Parcel No. Mwerua/Gitaku/85, which was initially registered in the name of her late father before being transferred on 17th April 1980 into the joint names of her mother and stepmother in equal shares. She stated that her mother's share became Land Parcel No. Mwerua/ Gitaku/496, which was subsequently subdivided on 23rd July 1986 to create Parcels Nos. 533, 534 and 535. She acknowledged that the Kirinyaga Land Disputes Tribunal had awarded Parcel No. 533 to her late mother, but that decision was later quashed by the High Court in High Court Appeal No. 62 of 2002 on 29th September 2009. 11. PW1 further testied that her late mother had intended to distribute the land by allocating one acre each to herself, her late brother and her sister. She claried that the 1st Plainti is the widow of her late brother, John Ngaire, who died in 2019, and that her late mother had similarly allocated him one acre. She also stated that the 3rd Plainti is her sister's daughter. Although she conceded that she did not know whether the 1st and 3rd Plaintis had obtained letters of administration in respect of the estates they represented, she denied the suggestion that she only entered the suit property after her mother's death in 2018. She maintained that she had always lived on the land where she had established her home, cultivated coee and avocado trees, and raised her family. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5689/eng@2026-09-23 3

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12. Upon re-examination, PW1 stated that Parcel No. 533 had initially been registered jointly in the names of her late mother and the Defendant before the Defendant caused it to be subdivided into Parcels Nos. Mwerua/Gitaku/2107 to 2110. 13. The Plaintis' second witness, Grace Muthoni Ngigi, 3rd plainti, testied as PW2, on 10th July 2025. She likewise adopted her witness statement dated 5th August 2022 as her evidence in chief. PW2 testied that the Defendant is her uncle. She stated that the suit property traces its origin to Land Parcel No. Mwerua/Gitaku/496, which belonged to her grandmother and was later subdivided to create Parcel No. 533. According to her, that parcel was intended to be shared among the Defendant, Jemimah Wanjiku Ngaire, Grace Muthoni Karuga, and herself. She testied that although the Defendant is presently registered as the sole proprietor, he had threatened to dispose of the land, and she therefore sought the court’s intervention to preserve it for the family beneciaries. 14. In cross-examination, PW2 stated that although she presently resides in Meru, she grew up in the suit area where she attended both primary and secondary school. She admitted that she could not identify her biological father and that her mother was deceased. She testied that her grandfather, Karuga, had two wives and owned approximately twenty-seven acres of land, which he distributed between them. She conrmed from the green card that Michael Karuga was the rst registered proprietor of Parcel No. Mwerua/Gitaku/85, before it was transferred into the names of his two wives on 17th April 1980. She further conrmed that Parcel No. 496 was registered in Alice’s name on 8th March 1984 and was thereafter subdivided into Parcels Nos. 533, 534 and 535, with Parcels 534 and 535 being allocated to her uncles, Kiragu and Gatheru, respectively. She acknowledged that Parcel No. 533 was registered jointly in the names of Alice and the Defendant on 27th February 1998, and further conceded that the award of the Land Disputes Tribunal concerning the parcel had been quashed by the High Court. 15. PW2 further testied that John Ngaire, the husband of the 1st Plainti, was a son of her grandmother and had his own parcel of land. She nevertheless maintained that there were two houses standing on Parcel No. 533, both of which belonged to her grandmother, and that members of the family had continued residing there while cultivating the land. She also stated that the Defendant does not reside on the suit property but occupies another parcel of land allocated to him. Evidence of the Defence: 16. The defence called Margaret Murugi who testied as DW1 on 10th July 2025. She testied on behalf of the Defendant, whom she described as her husband, explaining that he was unwell and therefore unable to testify. She stated that she had been married to the Defendant since 1971, was familiar with the history of the suit property. She adopted the Defendant's witness statement, and relied on the documents led on his behalf. 17. DW1 denied the Plaintis' assertion that the Defendant held Land Parcel No. Mwerua/Gitaku/533 in trust for them. It was her testimony that the Plaintis only entered and began utilizing the suit property after the death of Alice Kanugu, but could not recall the exact date of Alice's demise. She further stated that she did not know the 3rd Plainti personally, adding that her mother had been married to one Ngigi, who had educated her. In her view, the Plaintis had no lawful claim over the suit property and ought to vacate the land. She accordingly urged the court to dismiss the suit with costs. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5689/eng@2026-09-23 4

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18. During cross-examination, DW1 conrmed that the suit property traces its origin to Land Parcel No. Mwerua/Gitaku/85, which was initially registered in the name of Michael Karuga before being transferred to his two wives. She testied that Alice Kanugu became the registered proprietor of Land Parcel No. Mwerua/Gitaku/496, which she subsequently subdivided into Parcels Nos. 533, 534 and 535. She further stated that Alice had nine children, the Defendant being the fourth born, and that all her children had been allocated land by the clan where they currently reside. 19. DW1 also testied that Alice lived on the suit property during her lifetime and was buried there, and that a grandson presently occupies her homestead. She acknowledged that the Plaintis cultivate portions of the suit property but maintained that they only started doing so after Alice's death. She also conrmed that Ngigi was the father of the 3rd Plainti. 20. Upon re-examination, DW1 reiterated that Land Parcel No. Mwerua/Gitaku/85 had been subdivided between Michael Karuga's two wives, with Parcel No. 496 being allocated to Alice Kanugu. She testied that Alice later subdivided Parcel No. 496, allocating approximately four acres each to Kiragu and Gatheru, leaving a balance of about 5½ acres. According to DW1, during Alice's lifetime, the Plaintis never demanded any share of the land from her. 21. The learned counsel for the Plaintis and defendant led their submissions dated the 22nd October 2025 and 7th April 2026, respectively, which the court has considered. Plaintis’ Submissions: 22. In their submissions, the learned counsel for the Plaintis identied two issues for determination, namely whether the Defendant holds Land Parcel No. Mwerua/Gitaku/533 in trust for the Plaintis and who should bear the costs of the suit. On the rst issue, counsel submitted that the evidence on record established the existence of a customary trust in favour of the Plaintis. It was argued that the Defendant, Grace Muthoni Karuga, and the late Prisca Karuga, the mother of the 3rd Plainti, were children of the late Michael Karuga Ngaire and Alice Kanugu Karuga, who were the original holders of the family land. Counsel submitted that the suit property formed part of ancestral family land allocated by members of the Ucera Clan during the adjudication process, and that the Defendant was registered as proprietor in his capacity as the eldest son to hold the land on behalf of himself and the other members of the family. 23. Counsel further submitted that the Plaintis had consistently occupied the suit property as their ancestral home together with other members of the family and that the Defendant's subsequent subdivision and registration of the land in his sole name did not extinguish the Plaintis' benecial interests. Counsel relied on Section 28(b) of the Land Registration Act, 2012, arguing that customary trusts constitute overriding interests which bind registered land, notwithstanding that they are not noted in the register. It was further submitted that the Defendant's registration as proprietor did not defeat the Plaintis' equitable interests and that the evidence before the court satised the legal requirements for the establishment of a customary trust. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5689/eng@2026-09-23 5

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24. Counsel also argued that the Defendant's conduct in having the suit property registered solely in his name following the demise of Alice Kanugu Karuga gave rise to a constructive trust, as equity would not permit him to unjustly enrich himself at the expense of the other beneciaries. In support of these propositions, counsel relied on among other authorities, the case of Elizabeth Njoki & Another –vs- Muthoni Muriuki & 2 Others (2015) eKLR, Richard Nyamemba Auka & 2 Others –vs- Josephine Motarohi & 2 Others [2014] KEELC 11 (KLR), Christine Wambui Mwaura – vs- Njambi L.K. Githegi (2019) eKLR, Twalib Hatayan Twalib Hatayan & Another –vs- Said Ahmed Al-Heidy & Another (2015) eKLR, Florence Kaburu Muthik –vs- Kiburi Maria & Another (2017) eKLR, Isack M'Inanga Kiebia v Isaaya Theuri M'Lintari & Another (2018) eKLR, Macharia Kihari – vs- Ngigi Kihari (1994) eKLR, Jason Gatimu Wangara –vs- Martin Munene Wangara & Others (2013) eKLR, Mwangi & Another –vs- Mwangi (1986) KLR 328, and James Ndung'u Kiarie –vs- Georey Mwangi Kinuthia & Another (2012) eKLR, and urged the court to nd that the Defendant holds Land Parcel No. Mwerua/Gitaku/533 in trust for himself and the Plaintis and to grant the reliefs sought in the Plaint. 25. On the issue of costs, counsel submitted that costs follow the event pursuant to Section 27 of the Civil Procedure Act. Reliance was placed on the case of East African Standard Ltd –vs- Guardian Ltd (1934) 16(1) KLR 23, Ethics and Anti-Corruption Commission –vs- Nderitu Wachira & Others, Misc. Civil Application No. 19 of 2015, the text Judicial Hints on Civil Procedure by Richard Kuloba, and Halsbury's Laws of England in support of the proposition that a successful litigant should ordinarily be awarded costs. Counsel accordingly urged the court to nd that the Plaintis had proved their case on a balance of probabilities and to allow the suit with costs. The Defendant’s Submissions: 26. The learned counsel for the defendant commenced their submissions by tracing the history of the suit property from Land Parcel No. Mwerua/Gitaku/85 through the successive subdivisions that culminated in the creation of the suit property. Counsel submitted that the Plaintis' pleadings were inconsistent with the evidence adduced at the trial. In particular, counsel pointed out that at paragraph 5 of the Plaint, the Plaintis pleaded that the Defendant was the rstborn son of the family. However, the Defendant, in his witness statement dated 23rd September 2022, maintained that he was not the rst-born son, as John Michael Ngaire, the husband of the 1st Plainti, was in fact the eldest son. 27. Counsel argued that these inconsistencies between the Plaintis' pleadings and the evidence they presented cast doubt on the credibility of their case. In support of that proposition, reliance was placed on the case of Vijay Morjaria –vs- Nansing Madhusingh Darbar & Another, Civil Appeal No. 106 of 2000, and Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission & 2 Others (2017) eKLR, for the principle that parties are bound by their pleadings. Counsel further submitted that the Defendant is the registered proprietor of Land Parcel No. Mwerua/ Gitaku/533 and is therefore entitled to all the rights and privileges conferred upon a registered proprietor under Sections 24 and 25 of the Land Registration Act. 28. Counsel traced the history of the title, submitting that the suit property originated from Land Parcel No. Mwerua/Gitaku/85, which was rst registered in the name of Michael Karuga on 21st April 1960. Following his demise, the land devolved through succession to his widows, Alice Kanugu and Susan https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5689/eng@2026-09-23 6

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Karuana, in equal shares. Thereafter, Alice Kanugu became the registered proprietor of Land Parcel No. Mwerua/Gitaku/496, which she subsequently subdivided into Parcels Nos. 533, 534, and 535. Counsel submitted that Alice transferred Parcels Nos. 534 and 535 to her sons, Elijah Kiragu Karuga and Ezekiel Gatheru Karuga, respectively, while retaining Parcel No. 533 until 27th March 1998, when she caused it to be registered jointly in her name and that of the Defendant. 29. It was submitted that Alice's dealings with her land demonstrated that she understood the legal consequences of registration and transfer. Counsel argued that had it been her intention for the Defendant to hold the suit property in trust for the Plaintis, she would have expressly indicated so at the time of the transfer, included the Plaintis as co-proprietors, or subdivided and transferred portions to them as she had done in respect of the other parcels. Counsel therefore submitted that the suit property is the Defendant's exclusive property, free from any trust or other encumbrance. It was further argued that if the Plaintis genuinely believed that the Defendant held the land in trust, they had over twenty years, from 27th March 1998, when the Defendant became a joint proprietor, to assert their alleged rights. 30. On the issue of customary trust, counsel submitted that the burden of proving its existence rests upon the party asserting it pursuant to Section 107(1) of the Evidence Act. Reliance was placed on the case of Isack M'Inanga Kiebia –vs- Isaaya Theuri M'Lintari & Another, Mwangi Mbothu & 8 Others v Gachira Waitimu & 11 Others (1986) KLR, Njenga Chogera v Maria Wanjira Kimani & 2 Others (2005) eKLR, Peter Ndung'u Njenga –vs- Sophia Watiri Ndung'u (2000) eKLR, and Alice Wairimu Macharia v Kirigo Philip Macharia (2019) eKLR. Counsel submitted that the Plaintis had failed to discharge the burden of proving the existence of a customary trust. 31. Counsel further submitted that the suit property ultimately traces its origin to the estate of the late Michael Karuga, who was the father, father-in-law, and grandfather of the parties to this dispute. It was argued that upon his demise, his estate devolved to his two widows through succession proceedings, who became registered proprietors in equal shares. Counsel submitted that if the Plaintis were dissatised with the manner in which Michael Karuga's estate had been distributed, the proper course would have been to challenge the succession proceedings or pursue their claims against Alice Kanugu, who became the registered proprietor of Parcel No. 496. Counsel contended that Alice died in 2018, approximately thirty-eight years after the distribution of Michael Karuga's estate, and that it was therefore not open to the Plaintis to pursue a claim against the Defendant, who merely owns a portion of the original estate. Counsel further submitted that the Plaintis' claim was caught by the doctrine of laches. 32. Counsel argued that the facts of the case demonstrated that the suit property formed part of inherited property and that all the Plaintis were descendants of the late Michael Karuga. In those circumstances, counsel questioned whether the present proceedings were the appropriate forum for the determination of the Plaintis' grievances. It was submitted that if indeed the Plaintis considered themselves entitled to a share of the estate, they ought to have raised their claims during the succession proceedings or sought revocation of the grant rather than seek to reopen the distribution of the estate through a claim founded on customary trust. In support of that proposition, counsel relied on the case of Jemutai Tanui –vs- Juliana Jepkeny & 5 Others, ELC No. 44 of 2013 (formerly HCCC No. 60 of 2012), Dorcas Indombi Wasike v Benson https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5689/eng@2026-09-23 7

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Wamalwa Khisa & Another (2010) eKLR, and In re Estate of Anthony Gachoki Karithi (Succession Cause No. 216 of 2012) [2025] KEHC 15403 (KLR). 33. Counsel therefore urged the court to nd that, when the Plaintis' evidence is considered in its entirety and weighed against the evidence adduced by the Defendant, the Plaintis had failed to prove the existence of a customary trust or any entitlement to the suit property. The court was accordingly urged to dismiss the Plaintis' suit with costs and allow the Defendant's counterclaim. Analysis and Determination: 34. 35. The issues arising in this suit for the court’s determinations are as follows: a. Whether the Plaintis have proved, on a balance of probabilities, that the Defendant holds Land Parcel No. Mwerua/Gitaku/533, and its resultant subdivisions, in trust for himself and the Plaintis. b. Alternatively, whether the defendant’s registration with the suit property and the subdivisions thereof is absolute. c. Who pays the costs? The court has carefully considered the parties pleadings, evidence tendered, submissions led by the learned counsel, superior court decisions cited thereon and come to the following ndings: a. Before delving into the consideration as to whether the defendant held Land Parcel No. Mwerua/Gitaku/533, and its resultant subdivisions, in trust for himself and the Plaintis, I consider it necessary to briey look at the Defendant's submission that the Plaintis ought to have pursued their claim through succession proceedings relating to the estate of the late Michael Karuga. The Plaintis have neither challenged the succession proceedings nor sought revocation of any grant issued in respect of the estate of the deceased. Their claim, as pleaded, is that the Defendant, notwithstanding being the registered proprietor of the suit property, holds the same in trust for himself and the Plaintis. A claim founded on trust is one relating to an interest in land and falls squarely within the jurisdiction conferred upon this Court under Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act. In my view, the Defendant's contention that this Court lacks jurisdiction is without merit and therefore unsustainable. b. Turning to the merits, the starting point must necessarily be the history of the suit property as disclosed by the documentary evidence. The abstracts of title produced by the parties reveal a largely undisputed chain of ownership. Land Parcel No. Mwerua/Gitaku/85 was rst registered in the name of Michael Karuga on 21st April 1960. Following his demise, the property devolved through succession to his two widows, Alice Kanugu Karuga and Susan Karuana Michael, who were registered as proprietors in equal shares on 17th April 1980. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5689/eng@2026-09-23 8

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The register further shows that Alice Kanugu's share was partitioned to create Land Parcel No. Mwerua/Gitaku/496, which was registered in her sole name. On 23rd July 1986, Alice subdivided Parcel No. 496 into Land Parcels Nos. 533, 534, and 535. The evidence before the Court is equally clear that Parcels 534 and 535 were subsequently transferred to Elijah Kiragu Karuga and Ezekiel Gatheru Karuga, respectively, while Parcel No. 533 remained registered in Alice's name until 27th March 1998, when it was registered jointly in the names of Alice Kanugu Karuga and the Defendant. c. The register further discloses that following the demise of Alice Kanugu in 2018 her name was removed from the register pursuant to a court order issued on 24th October 2019, culminating in the Defendant being registered as the sole proprietor on 25th May 2020. A title deed was subsequently issued to him before the parcel was subdivided on 23rd March 2022 to create Land Parcels Nos. Mwerua/Gitaku/2107 to 2110, all of which remain registered in the Defendant's name. d. The Defendant has urged the Court to treat the foregoing registration history as conclusive proof that he is the absolute owner of the suit property by virtue of Sections 24 and 25 of the Land Registration Act. The Plaintis, on the other hand, contend that, notwithstanding the Defendant's registration, the property is subject to a customary trust protected under Section 28(b) of the same Act. It therefore bears repeating that registration, however absolute it may appear, is not by itself determinative where a trust is alleged, for Section 28(b) expressly recognizes trusts, including customary trusts, as overriding interests which bind registered land without the necessity of being noted in the register. The issue is therefore not whether the Defendant is the registered proprietor, which fact is beyond dispute, but whether the Plaintis have proved the existence of the alleged trust. e. The applicable principles relating to claims of trusts are now well settled. In the case of Isack M'Inanga Kiebia –vs- Isaaya Theuri M'Lintari & Another [2018] eKLR, the Supreme Court observed that customary trust is a question of fact to be proved by evidence and that the Court must consider, among other matters: i. whether the land in question was before registration family, clan or group land; ii. whether the claimant belongs to such family or clan; iii. whether the relationship between the claimant and the registered proprietor is such that the claimant could reasonably be expected to benet from the land; and iv. whether the claim is directed against a member of the family who was registered as proprietor. The Supreme Court was careful to point out that these elements are guides rather than rigid requirements. That the ultimate inquiry being whether the evidence https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5689/eng@2026-09-23 9

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establishes that the registered proprietor was intended to hold the land for the benet of others. f. Applying those principles to the present case, there can be little dispute that: i. The suit property traces its origin to family land. Both parties are ad idem that Parcel No. 85 belonged to the late Michael Karuga, the common patriarch from whom the parties derive their relationship. ii. Equally undisputed is the fact that the Plaintis and the Defendant are members of the same family. The Defendant is the brother of the 2nd Plainti, the brother-in-law of the 1st Plainti, and the uncle of the 3rd Plainti. In my view, the rst three elements identied by the Supreme Court in the case of Isack M'Inanga Kiebia (Supra) are therefore not contested. The real contest lies elsewhere. It is whether the evidence demonstrates that the Defendant was registered as proprietor of Parcel No. 533 in circumstances giving rise to a customary trust. g. The Defendant submitted that had Alice intended the Defendant to hold the land in trust for the Plaintis, she would have expressly declared such trust or caused the Plaintis to be registered as co-proprietors. That submission would undoubtedly carry considerable weight were it not for the evidence explaining the circumstances under which the joint registration came into existence. Although the award of the Baricho Land Disputes Tribunal was subsequently quashed by the High Court in Nyeri High Court Civil Appeal No. 62 of 2002, the proceedings before that Tribunal remain part of the evidentiary record before this Court. They do not determine the parties' proprietary rights, and this Court does not rely on the Tribunal's award to create or extinguish such rights. They are however, relevant in understanding the factual background that culminated in the present dispute. h. Of particular signicance is the evidence of Alice Kanugu Karuga, who explained before the Tribunal that after subdividing her land and allocating portions to her children, she later discovered that Parcel No. 533 had been registered jointly in her name and the Defendant’s. She stated that she believed she had merely transferred the Defendant's oneacre portion, only to realize later that a joint title had been issued over the entire parcel, adding that she was illiterate and had appended her thumbprint to documents whose contents she did not understand. Whether that account is ultimately accepted in its entirety is another matter. What cannot be ignored is that it provides a contemporaneous explanation of why the Defendant became a joint proprietor in 1998, an explanation which the Defendant did not rebut by producing the instrument of transfer or any evidence of the intention underlying the joint registration. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5689/eng@2026-09-23 10

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i. The existence of the Tribunal proceedings also demonstrates that the dispute over Parcel No. 533 did not emerge after Alice's death in 2018, as the Defendant's submissions might suggest. The green card itself records cautions lodged by John Ngaire Michael Karuga as beneciaries as early as 1998, followed by litigation culminating in the High Court appeal. That chronology is consistent with a long-standing family dispute over entitlement to the suit property and is inconsistent with the suggestion that the Plaintis' claim was an afterthought prompted by the Defendant's subdivision of the land in 2022. j. The Defendant also placed considerable emphasis on what he termed inconsistencies in the Plaintis' case, particularly the pleading that he was the rst son of the family. I do not consider that issue to be determinative of the issues in this suit. The evidence before the Court shows that John Ngaire, whom the Defendant identies as the rstborn son, is deceased. Read in that context, the Plaintis' description of the Defendant as the rst son is reasonably understood as referring to the eldest surviving son, upon whom family responsibilities had devolved. In any event, that pleading neither creates nor defeats a customary trust, whose existence must ultimately be determined from the totality of the evidence. k. The Defendant further submitted that the Plaintis' claim is defeated by the doctrine of laches, contending that they waited for over twenty years after the joint registration of the suit property in 1998, before instituting the present proceedings. I am unable to agree with that position, as the evidence on record demonstrates that the dispute over the suit property did not lie dormant during that period. The documentary evidence produced by both parties shows that cautions were lodged over the suit property by persons claiming benecial interests, proceedings were instituted before the Baricho Land Disputes Tribunal, an appeal was subsequently preferred before the Provincial Land Disputes Appeals Committee, and eventually before the High Court at Nyeri in Civil Appeal No. 62 of 2002. The existence of those proceedings demonstrates that the dispute concerning the suit property has persisted for decades and cannot, therefore, be said to have arisen only upon the institution of this suit. It cannot, in those circumstances, be said that the Plaintis slept on their rights. l. Equally unpersuasive is the Defendant's argument that the Plaintis ought to have pursued their claims through the succession proceedings relating to the estate of the late Michael Karuga or by seeking revocation of the grant issued therein. As already observed elsewhere above, the Plaintis are not challenging the distribution of Michael Karuga's estate. Indeed, the evidence shows that succession to Parcel No. 85 was completed, and Alice Kanugu became the registered proprietor of Parcel No. 496. The gravamen of the Plaintis' case is that when Parcel No. 533 was subsequently registered jointly in the names of Alice Kanugu and the Defendant, and later solely in the Defendant's name, the Defendant held the land subject to a customary trust in favour of himself https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5689/eng@2026-09-23 11

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and the other beneciaries of Alice Kanugu's household. That claim is distinct from a succession dispute and is one properly cognisable by this Court. m. The Defendant has further relied on Sections 24 and 25 of the Land Registration Act to contend that his registration as proprietor is conclusive evidence of ownership. While those provisions undoubtedly vest in a registered proprietor absolute ownership together with all rights and privileges appurtenant thereto, those rights are expressly made subject to the overriding interests recognized under Section 28 of the same Act. One such overriding interest is a trust, including a customary trust. Consequently, once a customary trust is established, the mere fact of registration cannot, without more, defeat the benecial interests of those in whose favour the trust subsists. n. Having considered the totality of the evidence presented before the court, I am satised that the Plaintis have proved, on a balance of probabilities, that the Defendant's registration with the suit property and the subdivisions therefrom, was subject to a customary trust, in view of the following factors: i. Firstly, the suit property is indisputably family land tracing its origin to the late Michael Karuga. Following his demise, his estate devolved to his widows, Alice Kanugu and Susan Karuana. Alice's share became Parcel No. 496, which she later subdivided into Parcels Nos. 533, 534, and 535. It is therefore evident that Parcel No. 533 did not originate from an independent acquisition by the Defendant but from land that had formed part of the family estate. ii. Secondly, the Plaintis and the Defendant are members of the same family. Their relationship is not disputed. The Defendant is the brother of the 2nd Plainti, the brother-in-law of the 1st Plainti, and the uncle of the 3rd Plainti. The evidence further demonstrates that the Plaintis have, for many years, occupied and utilized portions of the suit property. PW1 testied that she has always resided on the land where she has planted coee and avocado trees and raised her family. Signicantly, DW1 conceded during cross-examination that the Plaintis cultivate the suit property and that Alice herself lived there until her demise. Those admissions lend considerable support to the Plaintis' assertion that the suit property has at all material times been treated as family land. iii. Thirdly, while the Defendant insists that Alice deliberately transferred the entire parcel into their joint names, no explanation was oered as to why she https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5689/eng@2026-09-23 12

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would do so after already allocating Parcels Nos. 534 and 535 to two of her sons. The Defendant did not produce the instrument of transfer or any evidence demonstrating that Alice intended to vest the entirety of Parcel No. 533 in him absolutely. On the other hand, the Tribunal proceedings, though not determinative of the parties' rights, provide a contemporaneous account by Alice explaining that she intended only to transfer the Defendant's one-acre entitlement and that the issuance of a joint title over the whole parcel did not reect her understanding of the transaction. Whether that account is accepted in every respect is beside the point. Its signicance lies in the fact that it explains the genesis of the joint registration and demonstrates that the issue was raised during Alice's lifetime, long before the present proceedings. iv. Fourthly, the conduct of the parties after the joint registration is equally telling. The green card reects that cautions were lodged by John Ngaire Michael Karuga as a beneciary, and the dispute proceeded through several adjudicative forums before ultimately reaching this Court. Such conduct is wholly inconsistent with the Defendant's contention that his ownership of the suit property was accepted by the family as absolute and unquestioned. o. I am alive to the inconsistencies pointed out by the Defendant regarding the Plaintis' pleadings and evidence. However, viewed in the context of the entire record, those inconsistencies are not of such magnitude as to displace the overwhelming documentary evidence regarding the history of the suit land, the parties' relationship, their occupation of the suit property, and the circumstances under which the Defendant became registered as proprietor. The Court is required to evaluate the evidence holistically, rather than isolate minor discrepancies that do not go to the substance of the dispute. p. Accordingly, I nd that the Plaintis have established that the Defendant's registration as proprietor of Land Parcel No. Mwerua/Gitaku/533, and consequently the resultant subdivisions being Mwerua/Gitaku/2107, 2108, 2109 and 2110, was subject to a customary trust in favour of himself and the beneciaries of Alice Kanugu's household, including the Plaintis herein. q. Having reached that conclusion, it necessarily follows that the Defendant's counterclaim that his registration with the said land conferred upon him absolute title fails. The declaration sought that the suit property is his exclusive property is inconsistent with the Court's nding that he holds the same subject to a customary trust. Similarly, the prayer for eviction of the 1st and 2nd Plaintis cannot be granted, as their occupation of the suit property is founded upon the benecial interest, which this Court has found to exist. r. Under Section 27 of the Civil Procedure Act Chapter 21 of Laws of Kenya, costs follow the event unless where for good reasons the court directs otherwise. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5689/eng@2026-09-23 13

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Having taken note of the litigation history over the suit property that was evidently occasioned, by the defendant’s action of disregarding the fact that his registration with the land was in trust for self and others, including the plaintis, there is no good cause to deviate from the above edict on costs. 36. Flowing from the foregoing determinations on the various issues, the court nds and orders as follows: a. That the defendant’s counterclaim is without merit and is hereby dismissed with costs. b. That the plaintis have established their claim against the defendant on a balance of probabilities, and judgement is hereby entered in their favour as prayed in their plaint dated 5th August 2022 in the following terms: c. i. That a declaration is issued that the Defendant holds Land Parcel No. Mwerua/Gitaku/533, and the subdivisions thereof, being L. R. Mwerua/Gitaku/2107, 2108, 2109 and 2110, in trust for himself and the Plaintis. ii. An order is issued directing the Land Registrar, Kirinyaga, to cancel all the subdivisions made from Land Parcel No. Mwerua/ Gitaku/533, being Mwerua/Gitaku/2107, 2108, 2109 and 2110, and revert to the original title. iii. An order is issued for the subdivision of the L. R. No. Mwerua/ Gitaku/533, suit property, and the registration of the portions thereof as follows: 1. Barnabus Gachiani and Jemimah Wanjiku Ngaire – 1 acre each; 2. Grace Muthoni Karuga and Grace Muthoni Ngigi – 1.75 acres each. The defendant to meet the plaintis’ costs. Orders accordingly. DATED, SIGNED AND VIRTUALLY DELIVERED ON THIS 23RD DAY OF SEPTEMBER 2026. S. M. KIBUNJA ELC JUDGE In the presence of: Plaintis – Mr. Asimwe Defendant – Mr. Muthigani. Kinyua/Charles - Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5689/eng@2026-09-23 14

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