Elias & another v Hunja (Environment and Land Appeal E029 of 2025) [2026] KEELC 4653 (KLR) (21 July 2026) (Judgment)

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MURANG’A** **ELCA NO E029 OF 2025** **JACKSON WARUI ELIAS………………………..........................................1ST APPELLANT** **HUMPHREY KANG’ARU…………………….............................................2ND APPELLANT** **VERSUS** **JOHNSON KAMAU HUNJA.............................................................................RESPONDENT** ***(Being an Appeal from the Judgment of Hon. M.E. Analo (SRM) at Murang’a Law Courts delivered on 3rd July, 2025 in ELC NO. 13 of 2020.)*** **JUDGMENT** 1. In their Memorandum of appeal dated 20-7-2025, the Appellants seek the following orders against the Respondent. 2. **This appeal be allowed.** 3. **The Judgment in favour of the Respondent be set aside.** 4. **The Appellants’ counterclaim be allowed.** 5. **The Appellants be allowed the costs of this appeal.** 6. The appeal is grounded on thirteen (13) grounds. The learned trial magistrate erred in law and fact – 7. **by finding that the sale agreement between the Respondent and Helina Wangui Mutungi (deceased) was a valid document and thereby failing to appreciate that the deceased, who was the mother of the Appellants, did not own the land at the time of the alleged signing of the sale agreement, the owner of the land, her husband, having died and the grant of his estate had not been issued;** 8. **in his finding that Helina (deceased) had a beneficial interest in the estate of her late husband which upon confirmation would mature into an entitlement thereby granting her legal authority or capacity to sell land belonging to her deceased husband;** 9. **by failing to address himself on Sections 82 (b) and 55 of the Law of Succession Act with regard to the sale of deceased’s property without a grant and Article 40(6) of the Constitution of Kenya;** 10. **by finding that the Respondent was entitled to land measuring two(2) acres out of parcel No. Loc.15/Kigongo/190 and/or from the estate of Helina, yet the acquisition of land before confirmation of grant is unlawful and does not enjoy and/or confer property rights under the Constituion of Kenya;** 11. **when he failed to appreciate that in law, before confirmation of grant, the interest of the beneficiary is amorphous and incapable of being identified for the purpose of a sale agreement;** 12. **by failing to find that the purported sale agreement was null and void for lack of Land Control Board consent and consequently erred in ordering specific performance;** 13. **by misdirecting himself and failing to appreciate that the Land Control Act renders the sale of land void for lack of consent and this specific performance is not an appropriate remedy;** 14. **by allowing the prayer for specific performance of sale agreement whereas the Land Control Act provides that the only remedy for any agreement that becomes void under the Act is recovery of the consideration paid;** 15. **in holding that the Respondent paid a consideration of Kshs. 160,000/= while he paid Kshs.130,000/= leaving a balance of Kshs. 30,000/=;** 16. **by dismissing the Appellants’ counterclaim;** 17. **and as a result arrived at a wrong decision which in all circumstances failed to do justice to the Appellants;** 18. **in failing to appreciate that the suit was time barred both under control and a claim on land having been filed in the year 2020 relying on a sale agreement entered in the year 1996- over 24 years and** 19. **in failing to consider the Appellants’ submissions filed and served on 16-5-2025 and confirmed on 30-6-2025 to have been filed, yet the magistrate in the judgment said the parties did not file submissions.** 20. The facts of the case according to the Respondent who was the Plaintiff in CM’s Murang’a ELC Case No. 13 of 2020 are as follows. One, on 3-1-1996, the Respondent bought 2 acres of land from Helina Wangui Mutungi. The land that he bought was to be excised from L.R. No. Loc.15/Kigongo/190. It was part of the entitlement of Helina Wangui Mutungi after the confirmation of grant in Succession Cause No. 163/94 at Murang’a Law Courts. The Purchase price was Kshs. 160,000/=. Two, the Respondent took possession of the 2 acres in the year 1998. He lives on the land and he has carried out developments which include a homestead for his family. Before he occupied the 2 acres that he bought, the Respondent had paid the full purchase price. Three, in the year 1998, there was confirmation of grant in succession cause No. 163/1994 and Helina Wangui Mutungi was given her entitlement which included the 2 acres occupied by the Respondent. Three, Helina Wangui died before she could transfer the 2 acres to the Respondent. The Appellants who are her sons refused to take out letters of administration in respect of her estate. The Respondent had to file Succession Cause No. 283 of 2017 together with one Edwin Rubandi Kunjuga. The result was that the Court revoked the grant of letters of administration ad litem and gave the grant to the Appellants to administer the estate of their mother. Even after the Appellants became the administrators of the estate of their mother, their reluctance to transfer the 2 acres to the Respondent continued. Four, the Respondent was very apprehensive that the Appellants would kick him out the 2 acres that he had occupied unless the court compelled them to issue him a title. Five, this land has distinct boundaries. Six, the Respondent filed the lower court suit seeking orders for specific performance of the sale agreement dated 3-1-1966. 21. The facts of the case according to the Appellants are as follows. Firstly, they are not aware of any sale agreement dated 9-1-1996 between the Respondent and their mother Helina Wangui for the sale of 2 acres out of the suit land. Secondly, their father died on 24-10-1993 and their mother filed succession cause No. 163 of 1994 where she was issued with a grant of letters of administration on 26-6-1994. The grant was confirmed on 15-10-1998. The sale agreement is purported to have been entered into on 3-1-1996. Such an agreement is contrary to the law because no distribution of capital should be done before a grant is confirmed. Thirdly, before the Appellants’ father died, he had allowed the Respondent to construct a dwelling on a small portion of the suit land as he was in the process of purchasing another parcel of land nearby. After the death of the Appellants’ father, the Respondent refused to move even though he had completed purchasing the land he had intended to buy. Finally, the Respondent did not join the Appellants’ mother when she petitioned for the grant of letters of administration in the estate of Mutungi Githinde, deceased. He again failed to raise his claim during a meeting of clan elders held on 14-6-1995. The Appellants sought for the eviction of the Respondent in their defence and counterclaim dated 3-8-2020. 22. In his judgment dated 3-7-2025, the learned trial magistrate found as follows. Firstly, the Appellants’ mother had a beneficial interest in the estate of her husband which matured into an entitlement. He also found the sale agreement between the Appellants’ mother and the Respondent to be valid. Secondly, he found that the Respondent was entitled to the orders of specific performance. Thirdly, the lower court dismissed the claim for adverse possession of the suit land for the reason that it did not have jurisdiction to entertain such a claim. Finally the Appellants’ counterclaim was dismissed with costs as the Respondents claim was allowed with costs. 23. Counsel for the parties filed written submissions dated 8-5-2026 and 3-7-2026 respectively. None of the learned counsel identified any issues in the said submissions. In the absence of any issues identified by learned counsel for the parties, I will treat the grounds of appeal as the issues. The following issues arise from the grounds of appeal. 24. **Whether Helina Wangui owned any part of the suit land at the date of the sale agreement between her and the Respondent.** 25. **Whether Helina Wangui could sell immovable property before confirmation of grant yet Section 82(b) of the Law of Succession Act provides otherwise.** 26. **Whether the sale agreement between Helina and the Respondent was null and void for lack of consent of the Land Control Board.** 27. **Whether the suit was time barred under the Law of Contract and also on a land claim.** 28. **Whether failure to consider written submissions rendered the judgment wrong.** 29. I have carefully considered the record of appeal, the grounds, the written submissions by both sides, the issues raised therein and the law cited. This being a first appeal, this Court has a duty to reconsider, re-evaluate and analyse the entire evidence on record and make its own independent conclusions, while bearing in mind that it did not see or hear the witnesses testify and it must bear in mind this disadvantage. See **Selle and another vs. Associated Motor Boat – Co- Ltd and Others 1968 EA 123.** Applying the above principles to this case, I find as follows on the five broad issues identified above. 1. Regarding the first issue, I find that Helina Wangui, the Appellants’ mother did not own the suit or any part thereof at the time of the sale agreement. 2. As for the second issue, I find that Helina could not lawfully sell immovable property of the estate of her husband in view of **Section 82(b)** of the **Law of Succession Act** which forbids such sale. 3. It is my finding that the sale agreement between Helina and the Respondent did not have the blessing of the Land Control Board and it would therefore be null and void ordinarily if the doctrines of proprietary estoppel and constructive trust did not apply. 4. Looking at the issue of time bar, I find that the lower court suit was not time barred because the Respondent was not seeking to gain the land. He already had the land since 1998. All that he was seeking was to be registered as the owner. He was already the owner. The only thing that he lacked was the title to the land. 5. At page 5 of the judgment dated 3-7-2025, the trial magistrate had this to say at the second paragraph . **“From the Court file as at 2-7-2025, neither of the parties had filed their submissions. Equally upon perusal of the CTs as at 2-7-2025 none of the parties had uploaded their submissions. This court gave timelines within which parties were to file their submissions and having failed to do so, I will proceed to render the judgment of this Court.”** There is, in law a principle commonly expressed as follows. “The record of the Court imports absolute verity and cannot be contradicted by affidavit or oral evidence. If the record is alleged to be inaccurate, the proper course is to apply the same court to correct or amend the record**.”** See the **Republic Vs. Public Procurement Review Board and 2 Others ex parte Pelt Security Services Ltd [2018] Eklr** Going by the above principle, I find that the trial magistrate is correct in saying that the written submissions were not on record on 2-7-2025, a day before the judgment of 3-7-2025. Kenyan Courts have held and consistently so that written submissions do not constitute pleadings and cannot determine the outcome of a case. Their purpose is only to assist the court by highlighting the parties’ arguments based on the pleadings and evidence on record. See **Daniel Toroitich Arap Moi Vs. Mwangi Stephen Muriithi [2014] eKLR.** 1. Inspite of the foregoing, the Courts have recently developed the twin doctrines of constructive trust and proprietary estoppel to hold that where a vendor puts a purchaser in possession of land after the purchaser has paid the full purchase price, the vendor cannot be allowed to go back on his commitment. This is especially so where the purchaser is not at fault. The Court has gone on to hold that it is immaterial that the requisite consent of the Land Control Board has not been obtained because Equity is now a Constitutional value under Article 10 of the Constitution and it prevails over the Land Control Act. The two notable Court of Appeal decisions are **Macharia Mwangi Maina and 37 Others Vs. Davidson Mwangi Kaguri [2014] eKLR and Willy Kimutai Kitilit vs. Michael Kibet[2018] eKLR – Civil Appeal No. 51 of 2015.** The doctrine of proprietary estoppel arises as follows. The seller assures the buyer that he will acquire rights over land. The buyer relies on the assurance and as a result suffers detriment. Equity then prevents the seller from going back on that assurance where it would be unconscionable to do so. The facts of this case call upon the Court to invoke the two doctorines for the following reasons. Firstly, the Appellants’ mother took the Respondents money in the year 1996 and purported to sell 2 acres of land to him. Secondly, he occupied the land on the strength of the promise made by the Appellants’ mother to him. Thirdly, the Appellants have failed to fulfill the promise made by their mother to the Respondent. They now want to evict him from the land on the ground that he has no consent of the Land Control Board yet under the sale agreement and even in normal circumstance, it is the Appellants or their mother who should obtain that consent of the Land Control Board. The Appellants are seeking to benefit from their own wrong to the detriment of the Respondent *Nullus Commodum Capere Potest De Injuria Sua is a* foundationallegal and equitable Maxim in Latin which translates as follows in English. **“No person should seek to benefit from his own wrong.”** 1. It is my finding, for the reasons given in paragraph [12] above, that the Court ought to apply the doctrines of constructive trust and proprietary estoppel to prevent the unconscionable conduct of the Appellants which seeks to evict the Respondent from land that their mother had sold to him in the year 1996 and which he occupied in 1998. These doctrines of equity which is now one of the national values and principles of governance under Article 10 of the Constitution that bind this Court whenever it interprets any law. Equity being a constitutional value prevails over the Land Control Act. 2. For the above stated reasons, I dismiss the Appellants’ Appeal with costs and affirm the judgment on the learned trial magistrate dated 3-7-2025. **It is so ordered.** **Dated, signed and delivered virtually at Murang’a this 21st day of July, 2026.** **M. N. GICHERU** **JUDGE** **Delivered online in the presence of:-** **Court Assistant – Antony** **Appellants’ Counsel – Mr. Kimemia** **Respondents’ Counsel – Mr. Morigori**