Kiragu (Suing as the administrator of the Estate of James Kiragu Wachira - Deceased) v Muriithi (Sued as the administrator of both the Estates of Kaguchue Mugo and Lucia Wairimu Kirangano - Deceased) & another (Environment and Land Appeal E023 of 2021) [2026] KEELC 648 (KLR) (11 February 2026) (Judgment)

REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT OF KENYA AT KERUGOYA ELCA NO. E023 OF 2021 MOSES WACHIRA KIRAGU (Suing as the Administrator of the estate of James Kiragu Wachira-Deceased) ……………. APPELLANT VERSUS SABINA WAMBUI MURIITHI (Sued as the administrator of both the estates of Kaguchue Mugo and Lucia Wairimu Kirangano - Deceased) …………………… 1ST RESPONDENT JOEL GICHANGI NDEGE………………….……………. 2ND RESPONDENT (Being an appeal against the judgment and decree of Hon. Abdulkadir Lorot H.R, Chief Magistrate in Wang’uru ELC Case No. 40 of 2018 delivered on 7th December 2021) JUDGMENT 1. The Appellant, being dissatisfied with the whole of the judgment and decree of Hon. Abdulkadir Lorot H.R. (CM) delivered on 7th December 2021 in Wang’uru ELC Case No. 40 of 2018, commenced this appeal through the memorandum of appeal dated 22nd December KERUGOYA ELCA NO. E023 OF 2021 (JUDGMENT) 1 2021, raising eleven grounds as summarized below, alleging that the learned trial magistrate had erred in law and fact by: 1) Failing to properly evaluate and analyse the evidence on record and consequently holding that the Appellant had not proved, on a balance of probabilities, that the transfer of land parcel number Mwea/Tebere/B/1107 was part of an exchange or arrangement between the parties. 2) Mischaracterising the transfer of land parcel number Mwea/Tebere/B/1107 as an outright and lawful transfer, without adequately interrogating the circumstances, intention of the parties, and evidence surrounding the said transfer. 3) Holding that land parcel number Mwea/Tebere/B/1107 belonged to the estate of Lucia Wairimu Kirangano, on the basis that it had been transferred during the lifetime of James Kiragu Wachira, without properly considering the Appellant’s challenge to the validity and nature of that transfer. 4) Upholding the validity of the transfer of land parcel number Mwea/Tebere/B/783 to the 1st Respondent KERUGOYA ELCA NO. E023 OF 2021 (JUDGMENT) 2 and the subsequent sale thereof, without adequately considering whether the 1st Respondent had acquired a good title capable of being transferred, in light of the Appellant’s challenge to the root of title. 5) Failing to consider, analyse, or determine whether a constructive or beneficial trust arose in favour of the Appellant in respect of land parcel number Mwea/Tebere/B/783, arising from the circumstances under which land parcel number Mwea/Tebere/B/1107 was transferred. 6) Failing to prevent unconscionable conduct and to apply equitable principles, thereby permitting the family of Kaguchue Mugo to retain both land parcels to the detriment of the estate of James Kiragu Wachira, notwithstanding the evidence placed before the court. 7) Dismissing the Appellant’s claim of adverse possession over land parcel number Mwea/Tebere/B/783, without properly evaluating the evidence and applicable legal principles. 8) Misapprehending the effect of concluded succession proceedings relating to land parcel number Mwea/Tebere/B/783 and erroneously KERUGOYA ELCA NO. E023 OF 2021 (JUDGMENT) 3 holding that the court lacked jurisdiction to determine the Appellant’s claim merely because succession proceedings had been concluded. 9) Dismissing the Appellant’s suit with costs notwithstanding the foregoing errors. The appellant seeks for the appeal to be allowed, and the judgement of the learned trial magistrate delivered on 7th December 2021 be set aside, and substituted with an order allowing his claim in the plaint. 2. The appellant also filed the record of appeal dated 5th February 2024. That upon directions issued by the court, the learned counsel for the appellant and 1st & 2nd respondents filed their submissions dated 16th September 2024, 20th August 2024 and 7th April 2025, respectively, which the court has considered. 3. The learned counsel for the appellant submitted inter alia that the learned trial magistrate erred in law and fact in finding that the appellant had failed to prove an exchange of land parcel numbers Mwea/Tebere/B/783 and Mwea/Tebere/B/1107. It was contended that the evidence on record sufficiently demonstrated the circumstances under which the two parcels were to be exchanged, and that the only reason the exchange was KERUGOYA ELCA NO. E023 OF 2021 (JUDGMENT) 4 not completed was due to the deaths of the two parties involved in the transaction. Counsel submitted that the fact that the 1st respondent was not informed of the exchange could not be taken as proof that the exchange did not occur, and urged that the trial court ought to have given due weight to the evidence presented. It was further submitted that the late Kaguchue Mugo was the original owner of both parcels of land and that his intention was for his family members to occupy land adjacent to one another. Counsel faulted the trial court for allegedly ignoring documentary evidence, including the Land Control Board consent forms and draft transfer documents, which were said to have been signed by both the late Kaguchue Mugo and the late James Kiragu Wachira. It was submitted that the evidence demonstrated that the exchange process had commenced and, although it was intended to be simultaneous, it was not completed due to the death of Kaguchue Mugo before the transfer of parcel number Mwea/Tebere/B/783 could be effected. It was further submitted that the evidence on record showed that James Kiragu Wachira took exclusive possession of land parcel number Mwea/Tebere/B/783, which, according to counsel, was consistent with the parties’ intention to exchange the two parcels. Counsel contended that the KERUGOYA ELCA NO. E023 OF 2021 (JUDGMENT) 5 absence of a written memorandum by either James Kiragu Wachira or Kaguchue Mugo further supported the contention that the transaction was based on mutual understanding rather than formal documentation. On the issue of trust, counsel submitted that the trial court erred in failing to infer a constructive trust by not properly analysing the circumstances under which Lucia Wairimu Kirangano became the registered owner of land parcel number Mwea/Tebere/B/1107. It was contended that by allowing James Kiragu Wachira to immediately take possession of parcel number Mwea/Tebere/B/783 after parcel number Mwea/Tebere/B/1107 was transferred to Lucia Wairimu Kirangano, she became a trustee for James Kiragu Wachira. Counsel argued that, since trust is an overriding interest, Lucia Wairimu Kirangano held the suit land in trust for the deceased. Counsel further submitted that the learned magistrate erred in law and fact in holding that the appellant had not acquired an interest in land parcel number Mwea/Tebere/B/783 by adverse possession. He disputed the trial court’s finding that the claim failed because the appellant did not call any witnesses, submitting that the appellant’s own testimony was sufficient and that there KERUGOYA ELCA NO. E023 OF 2021 (JUDGMENT) 6 was no legal requirement that additional witnesses be called to prove adverse possession. Finally, counsel submitted that the trial court erred in holding that it was being asked to vary a decision of the High Court. It was argued that it is settled law that claims founded on trust and other proprietary interests over land forming part of a deceased’s estate are determined in a forum other than the succession court. Counsel urged the court to allow the appeal, set aside the judgment of the trial court, and substitute it with an order allowing the appellant’s claim as prayed in the plaint, together with costs. 4. The learned counsel for the 1st & 2nd respondents submitted inter alia that the learned trial magistrate erred in law and fact in holding that the reasons for the transfer of land parcel number Mwea/Tebere/B/1107 were unclear and against the weight of the evidence. Counsel submitted that the appellant’s allegation that land parcel number Mwea/Tebere/B/1107 was exchanged with land parcel number Mwea/Tebere/B/783 was not supported by any evidence. It was argued that no agreement evidencing an exchange of the two parcels was produced before the trial court. KERUGOYA ELCA NO. E023 OF 2021 (JUDGMENT) 7 5. Counsel further submitted that the trial court properly appreciated that the appellant’s allegation of an exchange was inconsistent with his own evidence. It was also contended that the appellant failed to explain why the late James Kiragu Wachira did not pursue the transfer of land parcel number Mwea/Tebere/B/783 from the year 2002 until his death in 2010. According to counsel, this inaction demonstrated that the suit property did not belong to the deceased. On the second issue, counsel addressed whether the learned magistrate erred in law and fact in dismissing the plaintiff’s suit with costs. Counsel submitted that the 1st respondent had demonstrated that, following the distribution of the estate by the High Court, land parcel number Mwea/Tebere/B/783 was sold to Stephen Gatei Kithaka, who subsequently sold it to the 2nd respondent, Joel Gichangi Ndege. It was contended that the trial court properly dismissed the plaintiff’s case. On the issue of costs, counsel submitted that the award of costs lies within the discretion of the court. Reliance was placed on section 27 of the Civil Procedure Act and the decision in Ethics and Anti-Corruption Commission v ersus Nderitu Wachira & 2 Others , Miscellaneous Civil Application No. 19 of 2015, in support of the submission that costs ought to follow the event. KERUGOYA ELCA NO. E023 OF 2021 (JUDGMENT) 8 In conclusion, counsel submitted that the 1st respondent had established a proper case before the trial court and urged this court to dismiss the appeal for lack of merit, with costs. 6. From the record and submissions, the following issues arise for the court’s determinations: a. Whether the appellant proved an enforceable exchange of land parcel Nos. Mwea/Tebere/B/1107 and Mwea/Tebere/B/783; b. Whether the appellant proved the acquisition of land parcel No. Mwea/Tebere/B/783 by adverse possession. c. Who pays the costs? 7. I have carefully considered the grounds on the memorandum of appeal, record of appeal, submissions by the learned counsel, superior court decisions cited thereon, and come to the following findings: a. The pleadings in the record of appeal confirms that the suit before the trial court was commenced by the plaintiff, now the appellant, by way of a plaint dated 29th October 2018. In the plaint, the appellant sought orders that land parcel number Mwea/Tebere/B/1107 KERUGOYA ELCA NO. E023 OF 2021 (JUDGMENT) 9 be reverted to him as the administrator of the estate of the deceased. In the alternative, he sought an order directing the Land Registrar, Kirinyaga County, to transfer land parcel number Mwea/Tebere/B/783 to him by way of adverse possession. He also prayed for the costs of the suit and interest. The appellant’s case, as pleaded, was that during his lifetime, his late son, James Kiragu Wachira, purchased land parcel number Mwea/Tebere/B/1107 from Simeon Mugo Kabundi, a son to Kaguchue Mugo. Following the purchase, the parcel was transferred and registered in the name of the deceased. According to the appellant, before his late son could commence developments on the said parcel, Simeon Mugo Kabundi and his father, Kaguchue Mugo, approached him with a request that land parcel number Mwea/Tebere/B/1107 be exchanged with land parcel number Mwea/Tebere/B/783. The reason advanced for the proposed exchange KERUGOYA ELCA NO. E023 OF 2021 (JUDGMENT) 10 was that parcel number Mwea/Tebere/B/1107 neighboured other parcels owned by members of Kaguchue Mugo’s family. The appellant pleaded that, acting in good faith, his late son procured the necessary consent and caused land parcel number Mwea/Tebere/B/1107 to be transferred in favour of Lucia Wairimu Kirangano, the wife of Kaguchue Mugo. He further averred that the process of transferring land parcel number Mwea/Tebere/B/783 to his late son was commenced, but the transaction was not completed owing to the deaths of both his son, James Kiragu Wachira, and Kaguchue Mugo. It was the appellant’s case that prior to his death, his late son had taken possession and occupation of land parcel number Mwea/Tebere/B/783, had carried out extensive developments thereon, and that the appellant had KERUGOYA ELCA NO. E023 OF 2021 (JUDGMENT) 11 since remained in exclusive possession of the said land. The appellant further pleaded that, notwithstanding the foregoing, the first respondent instituted succession proceedings in respect of the estate of Kaguchue Mugo without his knowledge and despite being aware of his late son’s alleged entitlement to land parcel number Mwea/Tebere/B/783. He contended that upon the conclusion of the succession proceedings, the said parcel was distributed to the first respondent, who subsequently disposed of it to the second respondent. b. The pleadings also confirms that in response to the Appellant’s claim, the 1st respondent filed a statement of defence dated 26th November 2018 in which she denied the allegations contained in the plaint. The 1st respondent averred that the transaction involving the late James Kiragu Wachira and the late Lucia Wairimu Kirangano was a sale transaction, and not an exchange of land parcels KERUGOYA ELCA NO. E023 OF 2021 (JUDGMENT) 12 as alleged by the plaintiff. She maintained that there was no exchange of any parcel of land between the late Lucia Wairimu Kirangano and the late James Kiragu Wachira. The 1st respondent further contended that the trial court lacked jurisdiction to entertain the suit on the grounds that the claim was time-barred and that a claim founded on adverse possession could not be determined by the trial court. On those bases, she urged the court to dismiss the suit with costs. c. The 2nd respondent filed his statement of defence dated 10th December 2018, in which he similarly denied the allegations contained in the plaint. He averred that land parcel number Mwea/Tebere/B/783 had been distributed to Stephen Gatei Kithaka, who subsequently sold the suit property to him. He maintained that all statutory and procedural requirements relating to the transfer were duly complied with and that, upon registration, he was issued with a title to the suit property and given vacant possession. The 2nd respondent further averred that the plaintiff had no bona fide or legally cognisable interest in the suit land and contended that the KERUGOYA ELCA NO. E023 OF 2021 (JUDGMENT) 13 claim of adverse possession was a non-starter. He also challenged the jurisdiction of the trial court to determine a claim founded on adverse possession and asserted that the claim to the land was statute-barred. d. The appellant subsequently filed a reply to the 1st respondent’s statement of defence, in which he reiterated the averments contained in the plaint. He maintained that the trial court had jurisdiction to hear and determine the suit and contended that the preliminary objection raised by the 1st respondent was not well founded. He accordingly urged the trial court to dismiss the objection and to allow the suit to proceed. In response to the 2nd respondent’s statement of defence, the appellant filed a reply in in which he denied that the 2nd respondent had ever been in possession of land parcel number Mwea/Tebere/B/783. He reiterated that the preliminary objection raised was not well-founded, and maintained that the trial court had jurisdiction to grant the reliefs sought in the plaint. The appellant prayed that the 2nd respondent’s statement of defence be struck out with costs. KERUGOYA ELCA NO. E023 OF 2021 (JUDGMENT) 14 e. In its judgment, the trial court identified the following two issues for determination: firstly, whether land parcel number Mwea/Tebere/B/1107 ought to revert to the plaintiff, and secondly, whether the plaintiff had acquired an interest in land parcel number Mwea/Tebere/B/783 through adverse possession. On the first issue, the learned trial magistrate found that land parcel number Mwea/Tebere/B/1107 had been duly transferred by the late James Kiragu Wachira to Lucia Wairimu Kirangano during his lifetime, and that the property therefore formed part of her estate. The court further found that the subsequent sale of the said parcel by the first defendant to Stephen Gatei Kithaka was lawful, as was the later transfer to the second defendant. On that basis, the trial court held that there was no legal basis upon which the parcel could revert to the plaintiff. On the second issue, the trial court found that the plaintiff had failed to establish a claim of adverse possession in respect of land parcel number Mwea/Tebere/B/783. The court noted that the plaintiff had not called any witnesses to KERUGOYA ELCA NO. E023 OF 2021 (JUDGMENT) 15 demonstrate the duration of his alleged occupation, nor to show that such occupation was without the consent of the registered proprietors. The court further observed that in Kerugoya High Court Succession Cause No. 375 of 2013, it had already been determined that land parcel number Mwea/Tebere/B/783 formed part of the estate of Kaguchue Mugo and had been distributed to his heirs. The trial court held that it lacked jurisdiction to question, review, or vary a certificate of confirmation of grant issued by the High Court. It consequently concluded that the plaintiff had not acquired any interest in the said parcel by way of adverse possession. Having so found, the trial court held that the plaintiff had failed to prove his case on a balance of probabilities and dismissed the suit with costs to the defendants. f. As this is a first appeal, the duty of this Court is to re-evaluate the evidence afresh and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses. This principle was stated in Selle & Another v ersus Associated Motor Boat Co. Ltd & Others [1968] EA 123 , where the Court of Appeal held: KERUGOYA ELCA NO. E023 OF 2021 (JUDGMENT) 16 “This Court is not bound necessarily to accept the findings of fact by the court below. An appeal to this Court is by way of retrial… this Court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.” g. In considering whether the appellant proved an enforceable exchange of land parcel Nos. Mwea/Tebere/B/1107 and Mwea/Tebere/B/783, the court has taken note that the following is not in dispute: 1. Land parcel No. Mwea/Tebere/B/783 formed part of the estate of Kaguchue Mugo and was, upon confirmation of the grant, distributed to Stephen Gatei Kithaka, who subsequently sold it to Joel Gichangi, the 2nd Respondent. 2. Land parcel No. Mwea/Tebere/B/1107 formed part of the estate of Lucia Wairimu Karangano and was transferred to her on 29th April 2002 by James Kiragu, the appellant’s deceased son. KERUGOYA ELCA NO. E023 OF 2021 (JUDGMENT) 17 The two parcels of land were subject matter in separate succession causes. These are the estate of Kaguchue Mugo, where there is a confirmed grant, and the estate of Lucia Wairimu, where distribution was still pending. h. The appellant’s core contention was not that Land parcel No. Mwea/Tebere/B/1107 was transferred gratuitously or fraudulently. Rather, his case was that: 1. Kaguchue Mugo, desirous of having his family hold adjacent parcels of land, approached James Kiragu and proposed exchanging parcel No. Land parcel No. Mwea/Tebere/B/ 783 for Land parcel No. Mwea/Tebere/B/1107. 2. James Kiragu accepted that proposal and transferred parcel No. Land parcel No. Mwea/Tebere/B/1107 to Lucia Karangano, allegedly as part of that exchange arrangement. KERUGOYA ELCA NO. E023 OF 2021 (JUDGMENT) 18 3. The exchange failed to be completed because Kaguchue Mugo died shortly thereafter. i. The appellant’s explanation appears factually plausible when viewed against: 1. The cluster of parcels owned by Kaguchue Mugo as reflected in the certificate of confirmation of grant dated 8th July 2014; and 2. The proximity of Kaguchue Mugo’s death in July 2002 to the transfer of Land parcel No. Mwea/Tebere/B/1107 in April 2002. However, factual plausibility is not legal enforceability. The trial court, and now this Court, is not called upon to determine whether an intention existed in the abstract, but whether that intention crystallised into a legally cognisable transaction capable of enforcement. j. Even taking the appellant’s narrative at its highest, the evidence only establishes the following: 1. There was an intention or proposal to exchange land; KERUGOYA ELCA NO. E023 OF 2021 (JUDGMENT) 19 2. Draft transfer forms and Land Control Board consent forms were prepared and signed; 3. The intended exchange did not materialise. An exchange of agricultural land is a controlled transaction within the meaning of the Land Control Act chapter 302 of Laws of Kenya. k. The Act, specifically Section 8, is categorical that: 1.Consent of the Land Control Board must be obtained within six months of the agreement; and 2. In default, the transaction becomes void for all purposes and this can only be cured by an application for extension of time in the High Court. The evidence on record does not show that, a valid consent was obtained and acted upon within the statutory period, or the exchange was completed by reciprocal transfers. Once six months lapsed without completion, the law treated the exchange as though it never existed. The consequence is KERUGOYA ELCA NO. E023 OF 2021 (JUDGMENT) 20 unavoidable; that no enforceable rights could arise from the aborted exchange. l. What troubles the appellant is the asymmetry that James Kiragu did complete the transfer of Land Parcel No. Mwea/Tebere/B/1107 to Lucia Karangano, but the reciprocal transfer of Land parcel No. Mwea/Tebere/B/783 never occurred. The critical question that arises is therefore on what legal basis can this Court now divest Lucia’s estate of land parcel No. 1107, when there is no written exchange agreement as required by law; no proof of fraud or misrepresentation; no pleaded or proved trust at trial; and no completed reciprocal transaction? In those circumstances, this Court has no legal foundation upon which to undo a registered transfer and deprive Lucia’s estate of Land Parcel No. Mwea/Tebere/B/1107. m. Further, the evidence availed shows that the estate of Lucia Karangano is still subject to a pending succession cause, within which the appellant has sought inclusion; and he estate of Kaguchue Mugo has already been fully distributed, KERUGOYA ELCA NO. E023 OF 2021 (JUDGMENT) 21 and Land Parcel No. Mwea/Tebere/B/783 has since passed to third parties for value. This Court cannot, through this appeal arising from the trial court’s judgment in a civil suit, unsettle a confirmed grant; invalidate subsequent transfers to third parties; or indirectly revoke succession orders made by a concurrent court of competent jurisdiction. If the appellant believed that Land parcel No. Mwea/Tebere/B/783 ought not to have been distributed as it was, or the succession court failed to consider his alleged interest, the proper recourse lay in seeking for revocation, review, or appeal of the succession proceedings, not in collateral litigation before the trial court. n. In the end, the appellant’s case collapses not because it is implausible, but because it is legally untenable in this forum. At best, the evidence discloses an unconsummated intention, rendered void by statute, incapable of defeating registered title, and incapable of unsettling confirmed succession orders. The learned trial magistrate, therefore, did not err in finding that the appellant failed to prove an enforceable exchange of land parcel Nos. Mwea/Tebere/B/1107 and Mwea/Tebere/B/783. KERUGOYA ELCA NO. E023 OF 2021 (JUDGMENT) 22 o. On whether the appellant proved the acquisition of Land Parcel No. Mwea/Tebere/B/783 by adverse possession, it is trite that the doctrine of adverse possession in Kenya is now firmly settled. In the case of Mtana Lewa v ersus Kahind i Ngala Mwagandi [2015] eKLR, the Supreme Court authoritatively stated as follows: “Adverse possession is essentially a situation where a person takes possession of land and asserts rights over it, and the person having title to it omits or neglects to take action against such person in assertion of his title for a certain period, in Kenya is twelve (12) years. The process springs into action essentially by default or inaction of the owner. The essential prerequisites being that the possession of the adverse possessor is neither by force of stealth not under the licence of the owner. It must be adequate in continuity, in publicity, and in extent to show that possession is adverse to the title owner.” The Supreme Court in the case of Isack M’Inanga Kiebia versus Isaaya Theuri M’Lintari & Another [2018] eKLR restated the applicable principles KERUGOYA ELCA NO. E023 OF 2021 (JUDGMENT) 23 governing claims founded on adverse possession, and held that: “The essential elements of adverse possession are that the claimant must prove that he has been in exclusive possession of the land openly and as of right, without interruption, for a period of twelve years, either after dispossessing the owner or by the discontinuance of possession by the owner on his own volition.” From the record, the appellant’s own case before the trial court was that the late James Kiragu Wachira entered and occupied land parcel No. Mwea/Tebere/B/783 pursuant to an intended exchange of land between himself and the late Kaguchue Mugo. That position was consistently pleaded and advanced by the appellant. On that footing alone, the entry and occupation complained of was not adverse at inception, but permissive. It arose from a consensual arrangement between the two deceased persons. In line with the holding of the Supreme Court in Isack M’Inanga Kiebia (supra), time for adverse possession could not begin to run unless there was KERUGOYA ELCA NO. E023 OF 2021 (JUDGMENT) 24 evidence of termination of such permission and subsequent hostile possession. No such evidence was placed before the trial court. p. Further, the learned trial magistrate found that the appellant did not place sufficient evidence before the court to demonstrate the duration, nature, and continuity of the alleged occupation on the said land. Although witness statements were filed, none of the proposed witnesses testified, and the trial court cannot be faulted for relying and deciding the issue on the evidence presented. Indeed, it is apparent the trial court noted that land parcel No. Mwea/Tebere/B/783 had been the subject of succession proceedings before the High Court and had been distributed pursuant to a confirmed grant. The trial court correctly observed that it had no jurisdiction to question, review, or vary the certificate of confirmation of grant issued by the High Court, which is superior to it, in those proceedings. q. Applying the binding principles set out by the Supreme Court in the case of Isack M’Inanga Kiebia v ersus Isaaya Theur i M’Lintari & another [2018] eKLR, the KERUGOYA ELCA NO. E023 OF 2021 (JUDGMENT) 25 court finds the appellant did not establish the essential elements of adverse possession over land parcel No. Mwea/Tebere/B/783. The learned trial magistrate, therefore, did not err in law or in fact in dismissing the appellant’s claim for adverse possession. r. Though the learned counsel for the appellant submitted on constructive trust, it is trite that this being a first appeal, this Court is confined to re-evaluating and re-considering the issues that were pleaded, canvassed, and determined by the trial court. A claim founded on trust, whether customary or constructive, was neither pleaded nor proved before the lower court, and consequently did not arise for determination. Nonetheless, and for completeness, even if the issue were properly before this Court, the material on record does not disclose a factual or legal basis for the imposition of a trust of any nature. As underscored by the Supreme Court in the case of Isack M’Inanga Kiebia v ersus Isaaya Theuri M’Lintari & another [2018] eKLR, the existence of a trust must be specifically pleaded and strictly proved. It KERUGOYA ELCA NO. E023 OF 2021 (JUDGMENT) 26 cannot be inferred or introduced through submissions. The appellant’s reliance on trust, therefore, does not alter the outcome of this appeal. In the result, the appeal lacks merit and is hereby dismissed in its entirety, and the judgment of the lower court in Wang’uru ELC Case No. 40 of 2018, delivered on 7th December 2021, is hereby affirmed. s. On costs, the court in the case of re Estate of Monica Wanjiru Macharia (Deceased) (Family Appeal15 of 2023) [2024] KEHC 14780 (KLR) held that: “Section 27 of the Act is clear that it lies in the discretion of the court to award costs in a suit. This discretion must be exercised judiciously.” And in the case of Morgan Air Cargo versus Everest Enterprises Limited [2014] eKLR, the court set out the factors that ought to be considered when determining the costs to include the conduct of the parties; the subject of litigation; the circumstances which led to the institution of the proceedings; the events which KERUGOYA ELCA NO. E023 OF 2021 (JUDGMENT) 27 eventually led to their determination; the stage in which they are terminated; the relationship between the parties; and the need to promote reconciliation amongst the disputing parties pursuant to Article 159(2) of the Constitution. Having given due considerations to the foregoing factors as discerned from the facts in the appeal, the court find no reasons to depart from the edict that costs follow the event unless where otherwise directed. The court therefore finds it fair and just to award the respondents the costs in this appeal and the trial court. 8. In view of the conclusions arrived at above, the court finds and orders as follows: a. The appeal is without merit and is dismissed in its entirety. b.The judgement of the learned trial magistrate delivered on 7th December 2021 in Wang’uru MELC No. 40 of 2018 is hereby confirmed. c. That the appellant to meet the respondents’ costs in this appeal. Orders accordingly. KERUGOYA ELCA NO. E023 OF 2021 (JUDGMENT) 28 DATED, SIGNED AND VIRTUALLY DELIVERD ON THIS 11TH DAY OF FEBRUARY 2026. S. M. Kibunja ELC JUDGE In the presence of: Appellant – No Appearance Respondents - M/s Magara and Mr. Ngigi for the 1st and 2nd respondents respectively. Kinyua - Court Assistant. S. M. Kibunja ELC JUDGE KERUGOYA ELCA NO. E023 OF 2021 (JUDGMENT) 29