Court of Appeal upholds widow's land rights in customary trust ruling

The Court of Appeal has upheld a ruling recognising a customary trust in favour of widow Mary Mwangi, affirming her right to a portion of a seven-acre property in Thika previously held in trust by her deceased husband’s brother.

Delivering the judgment on January 30, a three-judge bench dismissed an application to review the 2025 Environment and Land Court decision, confirming that Mary is the rightful beneficiary of a portion of a seven-acre property, which was held in trust for her deceased husband Joseph Mwangi by his brother.

“The green card produced in evidence shows the land was first registered in 1958, in the name of Francis Kamau Wainaina (the deceased registered proprietor) and a title deed was issued in 1964. Francis Kamau Wainaina was the elder brother of Joseph Mwangi Wainaina (the deceased husband of the respondent),” court documents show.

“The respondent’s case was that Francis held the suit property in trust for himself and for his brother Mwangi and that in the early 1970s, the two brothers divided the land into two equal portions, which division was marked on the ground by boundary trees/hedges and has been respected in occupation and use ever since.”

Appellants Samuel Kamau and Teresia Kamau, who are the widow and son of Kamau and administrators of the estate, argued that he (Kamau) held the land absolutely. 

“The appellants contended that the respondent’s occupation was, at most, permissive and limited to about two acres allocated in the succession process.”

They contested a 2025 Environment and Land Court ruling which declared that Kamau had held the property in a customary trust for his brother and ordered the transfer of a portion to Mwangi’s widow. 

Court records show Mary “testified that in 1972/1973, the two brothers caused the land to be demarcated into two equal portions in the presence of elders and witnesses and that after the demarcation they planted boundary trees which remain on the ground."

“She further testified that an agricultural officer thereafter supervised tea planting on the respective portions and each brother obtained a tea growing number."

"She relied, among other documents, on a survey report said to depict occupation, use and vegetation on the ground and the portion she occupied, as well as on records of prior proceedings in the [now defunct] Land Disputes Tribunal system where the land had earlier been the subject of a dispute.“

The appellants claimed the trial court erred by relying on quashed tribunal proceedings and unproven documents.

However, a three-judge bench, upon re-evaluating the evidence, found the trial judge's conclusions were rooted in established law and fact. 

Judges Daniel Musinga, Joel Nguji and George Odunga reiterated the foundational legal principle, citing the precedent Kanyi v Muthiora (1984), stating "registration did not extinguish rights under Kikuyu customary law and that a proprietor could still be subject to duties as a trustee".

This principle, now codified in the Land Registration Act, formed the bedrock of their analysis.

The judges noted that the respondent's decades-long, settled occupation of a distinct portion was a powerful indicator of a pre-existing right, not mere permission. 

They also found corroboration in the testimony of an agricultural officer, PW2 Peter Njoroge, who supervised tea planting on the land in the 1970s. 

"PW2's testimony was not directed to proving the ritual details of the ceremony but to establishing that the land was practically demarcated into two shares before tea planting and the demarcation corresponded to the instructions of the two brothers," the court noted.

This strongly supported the existence of a familial trust arrangement.

While agreeing that a quashed tribunal decision could not confer rights, the judges held that the record of those proceedings could still be admissible as historical evidence. 

The court also dismissed the argument that the matter belonged in probate court [handles matters related to a person's death and the administration of their estate], affirming the earlier court's exclusive jurisdiction to determine questions of title and trust. 

"Where a dispute turns on whether land registered in the name of a deceased person is held subject to a trust in favour of another... the proper forum is the Environment and Land Court—and not the probate court," the judgment stated.

The appellate court found no error in the trial judge's application of the law or evaluation of facts and dismissed the appeal, with costs awarded to the respondent.

“The upshot is that we find no basis upon which to interfere with the judge’s evaluation of evidence and application of the law. The appeal, therefore, fails.”