https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5310

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NAKURU** **ELCLC E11 OF 2025** **JOHNSTONE M. NYANUMBA**....................................................................**.........................PLAINTIFF** **VERSUS** **JULIUS KIPKURUI ROTICH**......................................................................................**1ST DEFENDANT** **MARGARET CHEPKURUI ORWASA………………………………......................2ND DEFENDANT** **JUDGMENT** 1. By a further amended Plaint dated 11th October, 2025, the Plaintiff herein sued the Defendants seeking the following orders: 2. ***A declaration that the Plaintiff is the absolute legal owner of Land known as NJORO/NJORO BLOCK 4/151 (BELBUR) having bought and/or adversely occupied it since 31st October, 2009.*** 3. ***An order of cancellation of the 2nd Defendant’s title deed in place the Land Registrar do issue a title deed for land parcel number NJORO/NJORO BLOCK 4/151(BELBUR) to the Plaintiff and a consequent order that any restrictions on the land be lifted.*** 4. ***An order of injunction restraining the defendants, their agents, employees and/or servants from interfering with the*** ***land known as NJORO/NJORO BLOCK 4/151 (BELBUR).*** 5. ***Without prejudice to the foregoing and as an alternative prayer, the Plaintiff claims for a refund of the consideration paid to the 1st Defendant which should be assessed as the current market value of the land.*** 6. ***Costs of the suit*** 7. The 1st Defendant filed statement of admission dated 2nd February, 2026, admitted to selling the suit land to the Plaintiff on 31st October, 2009, and consented that judgment be entered in Plaintiff's favor, asserting that the property had been fraudulently transferred to the 2nd Defendant without filing a Succession Cause. 8. The 2nd Defendant despite being served as per the affidavit of service sworn by Angela Kerubo Maobe dated 10th July, 2026, neither entered appearance nor filed a defence. **PLAINTIFF’S CASE** 1. PW1 Johnstone Mark Nyanumba, adopted his amended witness statement dated 11th October,2025, as his evidence in chief, and stated that he entered into a sale agreement dated 13th October 2009, with the 1st Defendant and some of his deceased siblings. PW1 filed a list of documents dated 11th October, 2025, which he produced as PExh No.1 and 2. 2. PW1 further stated that the land was registered in the name of the 1st Defendant’s deceased father and later discovered that the land had been transferred to the 2nd Defendant’s name fraudulently. 3. PW1 urged the court to allow the orders as prayed in the Plaint with costs. 4. DW1, the 1st Defendant gave evidence and stated that he had sold the land to the Plaintiff together with his siblings. He further stated he had filed a statement of admission. **PLAINTIFF’S SUBMISSION** 1. Counsel for the Plaintiff filed submissions dated 18th May, 2026, and identified the following issues for determination: 2. ***Whether the Plaintiff has proved purchase and beneficial ownership of the suit land.*** 3. ***Whether the Plaintiff has acquired title by adverse possession*** 4. ***Whether the 2nd Defendant’s title was unlawfully acquired and is liable to cancellation*** 5. ***Whether the Plaintiff is entitled to the alternative remedy of refund*** 6. ***Who should bear costs.*** 7. On the first issue, counsel submitted that the Plaintiff entered into a valid sale agreement with the 1st Defendant and his siblings and paid the full consideration. Counsel further stated that although the defendants’ father was the legal allotee of the said land, the defendants expressly represented that the land would devolve to the 1st Defendant and that there would be no objection to the sale. 1. Ms. Kerubo submitted that the assurance created a constructive trust and relied on the case of William **Kipsoi Sigei v Kipkoech Arusei & another [2019] eKLR**, as the Plaintiff relied on the defendants’ representation, paid consideration and took possession. Counsel submitted that equity therefore demands that the Plaintiff’s interest be protected. 2. On the second issue, on whether the Plaintiff is entitled to an order of adverse possession, counsel submitted that the Plaintiff has been in occupation of the suit land since 2009, a period exceeding 12years, and relied on the case of Chevron **(K) Ltd v Harrison Charo Wa Shutu [2016] eKLR.** Counsel argued that the Plaintiff has satisfied all the elements of continuous possession, open occupation, no interruption and no permission, hence the 2nd Defendant’s title has been extinguished by such occupation. 3. On the third issue, counsel submitted that the land was registered in the name of the 2nd Defendant and yet no Succession process was undertaken prior to the transfer, and relied on **Section 26** of the **Land Registration Act** and the case of **Elijah Makeri Nyangw’ra v Stephen Mungai Njuguna & another [2013] eKLR**, Counsel argued that a title may be impeached where it is acquired illegally or unprocedurally and the 2nd defendant’s title falls within the category hence must be cancelled. 4. On the fourth issue, counsel submitted, without prejudice to the primary prayer, that the Plaintiff is entitled to a full refund of the purchase price at the current market value founded upon three complementary reinforcing doctrines; the doctrine of unjust enrichment, restitution, total failure of consideration, and the principle of equity and constitutional justice. 5. Counsel relied on the cases of **Chase International Investment Corporation & another v Laxman Keshra & 3 others [1978] eKLR**, and **Kiplagat Kotut v Rose Jebor Kipngok [2019] eKLR**, Counsel argued that by parity of reasoning, the law of Succession Act and the technical defect created by the 2nd Defendant’s unlawful self-transfer cannot be weaponized by the 1st Defendant to escape liability for the purchase price received. Counsel submitted that the Plaintiff paid in full and the 1st Defendant cannot shelter behind the 2nd Defendant’s illegality to retain that payment. 6. Ms. Kerubo cited the cases of **In re Estate of Barasa Kanenje Manya (Deceased) [2020] KEHC 1 (KLR)** and **Ayub Ndungu v Marion Waithera Gacheru [2006] eKLR**, Counsel asserted that where a land transaction cannot be completed due to a defect on the vendor’s side, the vendor must return what was received. The vendor having failed to convey a valid title, cannot be permitted to retain the purchase price. 7. Counsel cited Articles 10, 40, and 159 of the Constitution of Kenya, 2010, and the cases of **Gabriel Makokha Wamukota v Sylvester Nyongesa Donati [1987] eKLR**, and **Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32**, and submitted that any monetary refund ordered must be assessed at current market value rather than the nominal price paid at the time of the agreement. Counsel submitted that returning only the original purchase price would allow a defaulting vendor to profit from land appreciation, thereby committing an injustice, and urged the court to grant the orders as prayed in the Plaint. **ANALYSIS AND DETERMINATION** 1. The issues for determination are as follows: 2. ***Whether the Plaintiff has proved that he is entitled to be declared the legal owner*** ***land parcel No. NJORO/NJORO BLOCK 4/151 (BELBUR)?*** 3. ***Whether the Plaintiff has proved the ingredients of adverse possession.*** 4. ***Whether the Plaintiff is entitled to the alternative prayer of a refund of the purchase price.*** 5. ***Who pays the costs of the suit.*** 6. On the issue as to whether the Plaintiff has proved that he is entitled to be declared the legal owner of the suit property, parcel No. NJORO/NJORO BLOCK 4/151 (BELBUR), the Plaintiff stated that he purchased the land from the 1st Defendant and his siblings and paid the full purchase price. The 1st Defendant admitted in his statement and evidence that he sold the suit land to the Plaintiff. 7. The evidence on record shows that the property belonged to the 1st Defendant’s deceased father and that no Succession Cause had been filed before the sale. It is not in dispute that by the time the sale of the suit land by the 1st Defendant to the Plaintiff, the deceased owner of the suit property was long dead and the 1st Defendant was not the legal representative of the deceased estate. In the case of **Marteve Guest House Ltd Vs Njenga & 3 others (Civil Appeal No. 400 of 2018) [2022]KECA 539 (KLR) [28th April 2022 (Judgment ) with dissent – W. Karanja JA),** the court held that”: ***“the Law of Succession Act does not donate power to the “estate of the deceased person” to deal with property forming that deceased’s estate but donates that power to an administrator with a will or a personal representative to the intestate estate of a deceased person to deal with the deceased person’s property on his/her death”*** 1. In fact, the sale Agreement at clause (c) acknowledges that the vendors are intended administrators. A beneficiary of the estate of a deceased has no capacity to dispose of land which is part of the estate before filing a Succession Cause and the estate being distributed as per the confirmed grant of Letters of Administration. 2. In **Re: Estate of Veronica Njoki Wakegito (2013) eKLR,** the court held that: ***“The effect of this is that the property of a dead person cannot be lawfully dealt with by anybody unless such person is authorized to do so by the law. Such authority emanates from a grant of representation and any person who handles estate property without authority is guilty of intermeddling. The law takes a serious view of intermeddling and makes it a criminal offence.”*** 1. In R**e: Estate of Barasa Kanenje Manya (Deceased) (Succession Cause 263 of 2002) [2020] KEHC 1 (KLR) (30 July 2020) (Ruling), Musyoka J,** answered the questions as to whether an administrator of a deceased’s estate could sell land belonging to the deceased’s estate before confirmation of grant and what was the remedy available to a person who bought land belonging to a deceased’s estate from the administrator of the estate before the confirmation of the grant of letters of administration as follows: ***“The applicants did not purchase the portions of the asset of the estate that they laid claim to from the deceased, but rather from a son of the deceased. They were not creditors of the estate. They would only have a claim against the estate if they had transacted over the land with the deceased owner himself.”*** ***“Section 79 of the Law of Succession Act should be read together with sections 82 and 83 of the Act, which set out the powers and duties of administrators. Once the assets of the deceased were vested in the administrators, the administrators would then be entitled to exercise the powers conferred upon administrators by section 82, and they were subject to the duties that were imposed by section 83. The powers included powers to enter into contracts with respect to assets of the estate, to sue and be sued with regard to estate assets, among others. Entering into contracts over estate assets would include converting estate assets by way of sale. However, section 82(b)(ii) of the Act outlawed the sale of immovable assets of an estate before the grant had been confirmed. That would mean that any such sale would be unlawful and unenforceable unless it happened with the leave of the court.”[emphasis added*** ***By dint of section 45 of the Law of Succession Act, any transaction between the deceased’s son and any other person amounted to intermeddling with the estate of the deceased, and those involved, therefore, would be deemed to have engaged in criminal activity and should have been prosecuted. The sales contravened sections 45 and 82 of the Law of Succession Act and there was no possibility that the applicants could have acquired any valid title from the sales, for the person who purported to sell the property to them had no title to it. He had nothing to sell and the applicants bought nothing from him.*** ***The deceased’s son had no property to sell and he conferred no good title to the prompted buyer. The transaction was unlawful and amounted to a criminal offence according to section 45 of the Law of Succession Act. That he was subsequently appointed administrator of the estate did not help him, nor salvage the transaction, since the deceased had died intestate, and by dint of section 80 of the Law of Succession Act, a grant of letters of administration intestate did not relate back to the date of death, so as to authenticate any of the acts of the administrator, done between the date of death and the date of appointment. The transaction of May 26, 2003, was as dead as a dodo.*** ***...The only remedy available to the buyers, with regard to the two transactions, was to pursue the person who purported to sell the property to them.”*** 1. It follows that the 1st Defendant and his siblings had no capacity to sell the land to the Plaintiff without a confirmed grant of letters of administration. In this case, it was worse because the Defendants had not even filed a Succession Cause in respect of the estate of the deceased. They were described in the sale agreement as “intended administrators”. They had no property to pass. Luckily, the Plaintiff prayed for an alternative order of a refund. 2. On the issue as to whether the Plaintiff has proved the ingredients of the doctrine of adverse possession, the court will not belabor much on this as the Plaintiff has also pleaded that the 2nd Defendant’s title was procured fraudulently. In a claim of adverse possession, a party must acknowledge the title that he/she hinges his claim on. If you doubt the root of the title to have been procured improperly or fraudulently, then you cannot benefit from a fraudulent scheme. The title must be clean for you to derive your ownership. 3. The court cannot sanitize a title that is fraudulently acquired to pass ownership to a claimant of adverse possession as was held in the case of **Haro Yonda Juaje v Sadaka Dzengo Mbauro & Kenya Commercial Bank (2014) eKLR,** that: ***“One cannot succeed in a claim for adverse possession before conceding that indeed the registered proprietor of the land is the true owner of the said land. It does not lie in the mouth of a claimant to aver that the title held by the registered proprietor was fraudulently acquired and then claim the same parcel of land under the doctrine of adverse possession. If the Plaintiff's averment is that the title which was issued to the Defendant was fraudulently acquired, then his cause of action would be for the rectification of title by cancellation pursuant to the provisions of Section 143 of the Registered Land Act and not adverse possession. He cannot use the doctrine of adverse possession to go around the decision of the Minister.”*** 1. The claim of adverse possession therefore fails. 2. On the issue as to whether the Plaintiff is entitled to a refund and costs, the 1st Defendant admitted receiving the full purchase price after selling the suit land to the Plaintiff, therefore it would be unjust for the Defendant to retain the land and the purchase price. 3. In the case of **Chase International Investment Corporation and another V Laxman Keshra and others (1978) KLR 143 at page 154 where Madan JA** (as he then was) held inter alia: ***“woe unto the day when it is lost sight in Kenya, which would also be contrary to the spirit of section 3(c) of the Judicature Act. I trust that in future, in appropriate cases, there will be less smothering of just equitable rights on the basis of technical objections and artificial distinctions oblivious to justice and substance.”*** 1. The above authority approved the basic elements presupposed by the doctrine of unjust enrichment being: *(1) that the Defendant has been enriched by the receipt of a benefit, (2) that he has been so enriched at the expense of the Plaintiff to allow the Defendant to retain the benefit in the circumstances of the case.* 2. In the case of **Mwangi V Ng'ang'a (Sued as the administrator of the Estate of Adam Nyaga Mwangi) [2025] KEELC 3152 (KLR)** the court held as follows: ***“In other words, the idea of unjust benefit is intended to prevent a person from retaining money or some benefit derived from another which it is against conscience that he should keep it, and he should, in justice, restore it to the Plaintiff. The gist is that a Defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to make restitution….*** ***…Most mature systems of law have found it necessary to provide, outside the fields of contract and civil wrongs, for the restoration of benefits on grounds of unjust enrichment.”*** 1. The court is of the view that even where a transaction is declared void because one party lacked the legal capacity to enter into the agreement, courts still have the power to grant other appropriate remedies to ensure justice is done. 2. Consequently, upon considering the pleadings, the evidence, the submissions and the relevant judicial authorities, I find that the Plaintiff is entitled to the alternative prayer for the refund of the purchase price in full plus costs at court rates until payment in full from the date of this Judgment. **DATED, SIGNED AND DELIVERED AT NAKURU THIS 19TH DAY OF AUGUST 2026.** **M. A. ODENY** **JUDGE**