https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4184

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MERU** **ELC LAND APPEAL NUMBER E051 OF 2025** JOSEPH MWEBIA JEREMIAH …………………………………APPELLANT VERSUS MOSES MURIUKI MBURUGU……………………….………RESPONDENT ***[Being an appeal from the Judgment and Decree of Honorable Edwin Nyaga S K Ngetich - Senior Principal Magistrate delivered in the MCELC E016/2023 at Nkubu on the 18.06.2025]*** **JUDGMENT** 1. The Respondent herein approached the lower court *vide* the Plaint dated 02.05.2023 and wherein same [Respondent] sought one primary relief. The relief sought was thus: 2. An order for the transfer of 2 acres out of LR No. Nkuene/Kathera/1239 to the Plaintiff. 3. Costs of the suit. 4. The Respondent’s suit was predicated on various assertions. The assertions were: LR/No. Nkuene/Kathera/1239 belonged to and was registered in the name of one Jeremiah Murithi Mwirichia [deceased]; the appellant herein was one of the beneficiaries of the estate of the deceased; the appellant sought to and sold two [2] acres out of the suit property to the respondent; the sale agreement was reduced into writing; the respondent paid the purchase price; and the appellant undertook to facilitate the transfer and registration of the sold portion of the suit property to the respondent. 5. Additionally, the respondent posited thus: The appellant herein authorized/allowed same to enter upon the sold portion of land; the respondent took possession; the respondent developed the sold portion of land; however, the appellant failed to transfer the sold portion of land; and the respondent has since acquired title to and in respect of the sold portion of land on the basis of constructive trust; [sic] advance possession; and limitation of actions. 6. Premised on the foregoing, the respondent invited the court to find and hold that the same was entitled to the reliefs sought. In particular, the respondent implored the court to decree the transfer of two [2] acres out of the suit property. 7. The appellant [who was the defendant in the lower court] duly entered appearance, filed a statement of defence and counter claim. The crux of the appellant’s defence was: The suit property belonged to and was registered in the name of Jeremiah Murithi Mwirichia – Deceased; the estate of the deceased had not been succeeded; the sale agreement was entered into before the issuance of grant of letters of administration; the sale agreement was illegal, unlawful and invalid; the sale agreement amounted to intermeddling with the estate of a deceased person; the Sale agreement violated the provisions of Section 45 of the Law of Succession Act, Chapter 160, Laws of Kenya; the contract in question was void; and the respondent did not acquire any right[s] to or in respect of the suit property. 8. Furthermore, the appellant posited that upon entry into and execution of the sale agreement, the respondent only paid the aggregate sum of Kshs. 530,000/= only, out of the agreed purchase price of Kshs. 700,000/= only. To this end, the appellant disputed the claim[s] by the respondent; and thus sought the Dismissal of the Suit by the Respondent. 9. In addition, the appellant herein sought the following reliefs: 10. **A declaration that the sale agreement dated 14.09.2004 is an illegal contract at formation, is null and *void ab intio* and is unenforceable against the plaintiff in the counter claim or against the estate of Jeremiah Murithi Mwirichia – deceased.** 11. **An order compelling the defendant in the counter claim to vacate the suit property, namely LR No. Nkune/Kathera/1239 or any of its subsequent subdivisions thereof and in default the defendant in the court claim be evicted under the supervision of OCS – Nkubu Police Station.** 12. **Costs and interest of the counter claim.** 13. The suit in the lower court was heard and disposed of *vide* the Judgment delivered on the 18.06.2025 and wherein the learned trial Magistrate [Hon. S K Ngetich – SPM] found and held that the respondent had proved his claim to and in respect of a portion measuring one [1] acre out of the suit property. In addition, the trial court found and held that the respondent had established and proven the plea of constructive trust. 14. On the contrary, the learned trial magistrate found and held that the appellant had not proved his counter claim. Moreover, the trial court posited that it would be unconscionable to find and hold that the sale agreement was a nullity at the instance of the appellant herein, who was a party to the said contract. In this regard, the trial court found that the appellant’s counter claim was not proven. 15. Based on the foregoing, the learned trial magistrate proceeded to and entered Judgment in favour of the respondent, while dismissing the appellant’s counter claim. 16. Dissatisfied with the Judgment and the consequential decree, the appellant filed the memorandum of appeal dated the 11.07.2025. The grounds of appeal are: 17. ***That the learned trial magistrate erred in law and in fact by failing to find and hold that the sale agreement dated 14.09.2004, was an illegal contract at formation, which contravened the express provisions of Sections 45 & 82 of the Law of the Succession Act Cap 160 and as such, the same could not be enforced.*** 18. ***The learned trial magistrate erred in law and in law by failing to find that the cause of action cannot be founded on void and illegal contract dated 14.09.2024.*** 19. ***That the learned trial magistrate erred in law by finding that the doctrine of constructive trust and proprietary estoppel applied to the enforceability of the sale agreement dated 14.09.2004.*** 20. ***That the learned trial magistrate erred by severing the agreement dated 14.09.2004 and awarded acre to the respondent while holding that the other 1 acre was unavailable due to the doctrine of frustration.*** 21. ***That the learned trial magistrate erred in law by ignoring and failing to follow the doctrine of stated decisis by applying the law as laid down in decisions of the court of appeal and the supreme court quoted the appellant.*** 22. ***That the learned trial magistrate erred in facts by failing to find that the respondent had only paid Kshs. 530,000/= to appellant which is the amount that would have been refunded after the sale agreement dated 14.09.2004 was nullified.*** 23. ***That the learned trial magistrate erred in law by dismissing the Appellant’s counter claim , which was well grounded in law and was supported by facts.*** 24. ***That the judgment of the trial court is against the weight of the law and the evidence placed before the trial court.*** 25. The subject appeal came up for directions on the 26.05.2026, whereupon learned counsel for the appellant intimated to the court that same had filed and served the record of appeal. In addition, learned counsel posited that the record of appeal was complete. To this end, learned counsel for the appellant sought directions as pertains to the hearing and disposal of the appeal. Moreover, counsel proposed to have the appeal canvassed by way of written submissions. 26. With the concurrence of the learned counsel for the respondent, the court proceed to and issued directions as pertains to the disposal of the appeal. The directions were: The appeal shall be canvassed by way of written submissions; the appellant shall file and serve the written submissions from the date of the directions; the respondent shall be at liberty to file and serve the written submissions from the date of service by the appellant; and the appellant shall be at liberty to file and serve rejoinder submissions [if any] within 7 days from the date of service. 27. The appellant filed written submissions dated the 05.06.2026 and wherein the appellant has highlighted and canvassed four [4] key issues. The issues are: The findings of the trial court that constructive trust/proprietary estoppel had been proved was untenable; the sale agreement was an illegality and thus void; constructive trust is an equitable remedy and same cannot arise out of an illegality; and the appellant was only paid the sum of Kshs. 530,000/= and not otherwise. 28. Learned counsel for the appellant has thereafter cited and referenced various decisions to anchor the submissions that the impugned contract was an illegality and thus incapable of birthing constructive trust. The decisions are: **Odera Versus Were [2025] KECA 1284; Re-estate of Baraza Kenenje Manya [deceased] [2020] KEHC; Republic versus Karisa Chengo and 2 others [2017] KESC ; and Kenya Airways Limited versus Flora [2013] KECA,** respectively. 29. Flowing from the foregoing submissions, learned counsel for the appellant has invited the court to find and hold that the appeal is meritorious. In this regard, the court has been implored to allow the appeal; set aside the impugned Judgment; dismiss the respondent’s suit; and allow the counter claim dated the 02.06.2023. 30. The respondent filed written submissions dated the 22. 06. 2026 and wherein same has highlighted four [4] key issues. The issues are: Whether the sale agreement which was entered into and executed between the appellant and the respondent violated the provisions of **sections 45 and 82 [b] of the Law of Succession Act, Chapter 160 Laws of Kenya**; Whether the doctrine of constructive trust and proprietary estoppel applies in the circumstances of the subject matter; Whether the decision of the lower court is supported by case law; and Whether the decision of the lower court violates the doctrine of *Stare decisis* or otherwise. 31. Additionally, learned counsel for the respondent has submitted that even though the appellant had not been constituted as the legal administrator of the estate of Jeremiah Murithi [deceased], the appellant held himself out as capable of facilitating the transfer of the sold portion of land, upon completion of the succession. 32. Furthermore, it has been submitted that even though the sale agreement was entered into and executed prior to the issuance of grant of letters of administration, that does not defeat or negate the application of the doctrine of constructive trust. In any event, it has been submitted that the appellant allowed the respondent to enter upon and take possession of the sold portion of land. In addition, it has been submitted that the respondent has been in possession and occupation of the land for more than 19 years. 33. As a result of the foregoing, learned counsel for the respondent contended that a proper basis was established and demonstrated to warrant the invocation and deployment of the doctrine of constructive trust. Moreover, learned counsel referenced the decision in the case of **Macharia Mwangi and 87 others versus Davidson Mwangi Kagiri [2014] eKLR,** in support of the contention that constructive trust was applicable. 34. Finally, learned counsel for the respondent has submitted that it would be unconscionable for the appellant to retain the entire land which was sold as well as the purchase price. In any event, it was contended that the conduct of the appellant is inequitable. To this end, the court was invited to deploy the **provisions of Article 159 [2] [d] of the Constitution, 2010.** 35. Having reviewed the record of appeal the memorandum of appeal; the evidence tendered before the trial court [both oral and documentary]; the Judgment appealed against; and upon taking into account the written submissions by/on behalf of the respective parties, two [2] key issues emerge for consideration and determination. The issues are: Whether the respondent proved/established constructive trust or otherwise; and what relief[s]s ought to issue in respect of the subject matter. 1. Before venturing to address the thematic issues that have been isolated in the preceding paragraph, it is important to highlight that what is before me is a first Appeal. By virtue of being a first Appeal, this court is mandated to undertake a fresh and exhaustive scrutiny, review, and analysis of the totality of evidence tendered before the court of first instance. The court is obligated to review the evidence and determine whether the finding[s] and conclusion[s] arrived at by the trial magistrate accord with the evidence on record and the legal principles. 2. The court is seized of the authority and jurisdiction to arrive at an independent conclusion and to depart from the findings of the trial court. However, it is established that the appellate court can only depart from the factual finding[s] and conclusion[s] of the trial court where it is demonstrated: that the conclusions were based on no evidence; the conclusions are perverse to the evidence on record; the findings are based on misapprehension of the evidence and law; and that there is a demonstrable error of principle which vitiates/negate[s] the findings of the Trial Court. 3. Suffice it to state that, barring the foregoing, the first appellate court is enjoined to defer to the findings and conclusions of the trial court. Notably, the jurisdiction of the first appellate court to interfere with the findings/conclusions of the trial court is circumscribed. The jurisdiction is not at large. 4. The jurisdictional remit of the first appellate court, while undertaking its mandate as pertains to the first Appeal, has been the subject of various court decisions. In the case of **Odera t/a AJ Odera & Associates v Machira t/a Machira & Co Advocates [2013] KECA 208 (KLR),** the Court of Appeal expounded on the scope of the jurisdiction. 5. The court stated thus *“46. We also wish to be guided by the reasoning of this court in the case of* ***Mwana Sokoni versus Kenya Business Limited (1985) KLR*** *931 page 934,934 thus:-* *“Although this court on Appeal will not lightly differ from the Judge at first instance on a finding of fact, it is undeniable that we have the power to examine and re-evaluate the evidence on a first Appeal if this should become necessary. As was said by the House of Lords in Sottos Shipping versus Sauviet Sohold, The Times, March 16, 1983.“It is uncertain whether their Lordships should have reached the same conclusion on the evidence, but it is important that, sitting in the appellate court they should be over mindful of the advantages enjoyed of the trial Judge who saw and heard the witnesses and was in a comparably better position than the Court of Appeal to assess the significance of what was said, how it was said, and equally impotent what was not said” Again in Peters versus Sunday Post Limited (1958) EA424, a decision of the Court of Appeal for Eastern Africa, Sir Kenneth O’ Conner, P said at page 429: “It is a strong thing for an appellate court to differ from the finding on a question of fact of the Judge who tried the case and who has had the advantage of seeing and hearing and the witnesses.”* 1. Recently, the Court of Appeal re-visited the jurisdictional remit in the case of **Kenya Urban Roads Authority & another v Belgo Holdings Limited [2025] KECA 764 (KLR).** The Court highlighted the principle in the following manner: *“We have considered the Appeal, and this being a first Appeal, we are under a duty to subject the entire evidence and the judgment to a fresh and exhaustive examination with a view to reaching our own conclusions in the matter. In carrying out this duty, we have to remember that we had no opportunity of seeing and hearing the witnesses who testified during the trial and to make an allowance for the same. We have also to remember that it is a big thing to overturn the findings of a trial court which has had the singular opportunity of reaching its conclusions based on a combination of the evidence adduced and observation by the court of the demeanour of witnesses. In a nutshell, a first appellate court must of necessity proceed with caution in deciding whether or not to interfere with the findings of a trial court, but of course, where such findings are not supported by the evidence on record or where they are founded on a misapprehension of the law, the axe must fall on the impugned judgment. This position is anchored in section 78 of the*[*Civil Procedure Act*](https://new.kenyalaw.org/akn/ke/act/1924/3)*, which requires a first appellate court to re-evaluate, reassess, and reanalyse the extracts of the record and draw its own conclusions. These provisions have been underscored in numerous decisions of the Superior Courts among them Peters v Sunday Post Limited [1958] EA 424, where the predecessor to this Court expressed itself as follows: “Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law an appellate court has jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this really is a question of law), the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial Judge as to where credibility lies is entitled to great weight. This is not to say that the Judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to the courts of Appeal) of having the witnesses before him and observing the manner in which their evidence is given…Where a question of fact has been tried by a judge without a jury, and there is no question of misdirection of himself, an appellate court which is disposed to come to a different conclusion on the printed evidence, should not do so unless it is satisfied that any advantage enjoyed by the trial Judge by reason of having seen and heard the witnesses, could not be sufficient to explain or justify the trial Judge’s conclusion. The appellate court may take the view that, without having seen or heard the witnesses it is not in a position to come to any satisfactory conclusion on the printed evidence. The appellate court, either because the reasons given by the trial Judge are not satisfactory, or because it unmistakably so appears from the evidence, may be satisfied that he has not taken proper advantage of his having seen and heard the witnesses, and the matter will then become at large for the appellate court. It is obvious that the value and importance of having seen and heard the witnesses will vary according to the class of case, and, it may be, the individual case in question…It not infrequently happens that a decision either way may seem equally open, and when this is so, then the decision of the trial Judge who has enjoyed the advantages not available to the appellate court becomes of paramount importance and ought not be disturbed. This is not an abrogation of the powers of a Court of Appeal on questions of fact. The judgment of the trial Judge on the facts may be demonstrated on the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate the weight or bearing of circumstances admitted or proved or otherwise to have gone plainly wrong.” [see also the decision in the case of* **County Government of Bungoma & 2 others v JOO & 2 others [2024] KECA 1377 (KLR) *and*****County Government of Narok v Ntutu & 2 others [2026] KECA 880 (KLR) –** [paragraphs 56 and 57 thereof]” 1. Bearing in mind the principles enunciated in the decisions [supra], I am now well poised to revert to the subject matter and to address the thematic issues highlighted elsewhere hereinbefore. I beg to start with the first issue, namely; Whether the respondent proved/established constructive trust or otherwise. To begin with, it is the appellant who contended that the circumstances surrounding the execution of the sale agreement, the entry into and occupation of the sold portion of the suit property; and the payment of the consideration, warranted a basis for the invocation and deployment of the doctrine of constructive trust. In this regard, the respondent bore the burden of placing before the trial court cogent, plausible and credible evidence to demonstrate the existence of trust. 2. It is common ground that trust whether constructive or otherwise, can only be proven or inferred from cogent evidence. The law as pertains to discernment of whether trust has been proven or not is now well settled. In the case of **Kazungu Fondo Shutu & another v Japhet Noti Charo & another [2021] KECA 592 (KLR),** the court of appeal illuminated the circumstances that underpin the plea of constructive trust. 3. The court stated as hereunder: **28. The concept of trust must however be proved. This Court in the case of Mumo v Makau [2002] 1EA.170, held that “trust is a question of fact to be proved by evidence…..” See also Kanyi Muthiora v Maritha Nyokabi Muthiora, Nairobi Court of Appeal No.19 of 1982.** **29. In Juletabi African Adventure Limited & another v Christopher Michael Lockley [2017] eKLR, this Court dealt with the issue of trust at length. The Court made reference to Twalib Hatayan Twalib Hatayan & Anor v Said Saggar Ahmed Al-Heidy & Others [2015] eKLR and re-stated the law on trusts as follows: -** **“According to the Black’s Law Dictionary, 9th Edition; a trust is defined as** **“1. The right, enforceable solely in equity, to the beneficial enjoyment of property to which another holds legal title; a property interest held by one person (trustee) at the request of another (settlor) for the benefit of a third party (beneficiary).”** **Under the Trustee Act, “… the expressions “trust” and “trustee” extend to implied and constructive trust, and cases where the trustee has a beneficial interest in the trust property…”** **In the absence of an express trust, we have trusts created by operation of the law. These fall within two categories; constructive and resulting trusts. Given that the two are closely interlinked, it is perhaps pertinent to look at each of them in relation to the matter at hand. A constructive trust is an equitable remedy imposed by the court against one who has acquired property by wrong doing. … It arises where the intention of the parties cannot be ascertained. If the circumstances of the case are such as would demand that equity treats the legal owner as a trustee, the law will impose a trust. A constructive trust will thus automatically arise where a person who is already a trustee takes advantage of his position for his own benefit (see Halsbury’s Laws of England supra at para 1453). As earlier stated, with constructive trusts, proof of parties’ intention is immaterial; for the trust will nonetheless be imposed by the law for the benefit of the settlor. Imposition of a constructive trust is thus meant to guard against unjust enrichment. …** **A resulting trust is a remedy imposed by equity where property is transferred under circumstances which suggest that the transferor did not intend to confer a beneficial interest upon the transferee ...** **This trust may arise either upon the unexpressed but presumed intention of the settlor or upon his informally expressed intention. (See Snell’s Equity 29th Edn, Sweet & Maxwell p.175). Therefore, unlike constructive trusts where unknown intentions maybe left unexplored, with resulting trusts, courts will readily look at the circumstances of the case and presume or infer the transferor’s intention. Most importantly, the general rule here is that a resulting trust will automatically arise in favour of the person who advances the purchase money. Whether or not the property is registered in his name or that of another, is immaterial (see Snell’s Equity at p.177) (supra).”** **30. The argument by the appellants was that there was a constructive trust which was breached by the 1st respondent. The 1st respondent on the other hand argued that he inherited the suit property from his late father, and that the suit property was just a small portion of Plot M5 which belonged to his late father.** **31. *As earlier stated, the existence of a trust is a question of evidence. In the Juletabi case (supra), the court held that the onus lies on the party relying on the existence of a trust to prove it through evidence. That is because:*** **“The law never implies, the Court never presumes a trust, but [only] in case of absolute necessity. The Courts will not imply a trust save in order to give effect to the intentions of the parties. The intention of the parties to create a trust must be clearly determined before a trust will be implied.”** 1. Did the respondent prove/establish constructive trust? The crux of the respondent’s case was that same entered intothe sale agreement dated 14.09.2004 with the appellant. The respondent knew and was privy to the fact that the suit property which was being sold belonged to and was registered in the name of Jermiah Murithi Mwirichia. In addition, the respondent was knowledgeable of the fact that the registered owner of the suit property was deceased at the material time of entry into or execution of the sale agreement. 1. Furthermore, the respondent was equally made aware that no succession had been undertaken in respect of the estate of the deceased. Besides, it was explicit that the appellant, who held himself out as the vendor, had not been appointed as the legal administrator of the estate of the deceased. To this end, it is common ground that the appellant lacked the requisite capacity [Legal Standi] to transact on behalf of the estate to the deceased. 2. Additionally, it is not lost on me that the transaction which was being entered into and executed between the appellant and the respondent, clearly constituted an intermeddling with the estate of the deceased. Suffice it to state that such an act is not only unlawful and illegal, but constitute[s] a criminal offence by dint of **section 45 of the Law of succession Act, chapter 160 laws of Kenya.** 3. The provisions under reference stipulates thus: **45. No intermeddling with property of deceased person** ***(1) Except so far as expressly authorized by this Act, or by any other written law, or by a grant of representation under this Act, no person shall, for any purpose, take possession or dispose of, or otherwise intermeddle with, any free property of a deceased person.*** ***(2) Any person who contravenes the provisions of this section shall-*** ***(a)be guilty of an offence and liable to a fine not exceeding ten thousand shillings or to a term of imprisonment not exceeding one year or to both such fine and imprisonment; and*** ***(b)be answerable to the rightful executor or administrator, to the extent of the assets with which he has intermeddled after deducting any payments made in the due course of administration.*** 1. In simple terms, the sale agreement that anchors the respondent’s plea of constructive trust was an illegality. The question that does arise is whether an act which is illegal and criminal in nature, can birth any lawful process or cause? In my humble and considered view, where an act is illegal, anything done out of it, is *void* and a nullity. This has been the established position of the Law over the year[s]. 2. In the case of **Republic v Chengo & 2 others [2017] KESC 15 (KLR),** the Supreme Court discussed the legal implication[s] of an illegality and whether an illegality can be relied upon to espouse a legal claim. 3. The Apex Court stated as hereunder: **When an act is void, it is a nullity *ab initio* . It cannot found any legal proceedings and Lord Denning’s decision in the Privy Council case of**[***Benjamin Leonard Macfoy United Africa Company Limited***](http://www.nigeria-law.org/LawReporting/1961/Benjamin%20Leonard%20MacFoy%20v%20United%20Africa%20Company%20Ltd.htm)**(UK)[1962] AC 152 succinctly makes this point. He stated thus:“Court has discretion in matters that are voidable not to proceedings that are a nullity for those are automatically void and a person affected by them can apply to have them set aside *ex debito justitia*e in the inherent jurisdiction of the Court ...”And;“If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. … And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.”** 1. Additionally, the court of appeal has also spoken to the legal implication[s] attendant to an illegal contract. In the case of **Kenya Airways Limited v Flora [2013] KECA 545 (KLR),** the Court of Appeal stated as hereunder: ***38. Ex turpi causa non oritur actio. This old and well known legal maxim is founded in good sense, and expresses a clear and well recognized legal principle, which is not confined to indictable offences. No court ought to enforce an illegal contract or allow itself to be made the instrument of enforcing obligations alleged to arise out of a contract or transaction which is illegal, if the illegality is duly brought to the notice of the court, and if the person invoking the aid of the court is himself implicated in the illegality. It matters not whether the defendant has pleaded the illegality or whether he has not. If the evidence adduced by the plaintiff proves the illegality the court ought not to assist him.” See also the case of Mapis Ivestment [K] LTD v Kenya Railways Corporation, [2006] eKLR.*** ***39.This Court is further guided by the case of Heptulla v Noormohamed, [1984] KLR page 58 where the Court held:“No court ought to enforce an illegal contract where the illegality is brought to its notice and if the person invoking the aid of the court is himself implicated in the illegality.”*** ***40.Further, in the case of Hall v Wooston Hall Leisure Ltd, [supra] it was held that:“In order for the doctrine to act as a defence to the claim, there must be illegal performance of the contract by one party to the contract and knowledge of that illegal performance and participation in it by the other party to the contract.” [Emphasis supplied]*** ***41.In our view, from the circumstances of the instant case, there existed no enforceable contract between the parties by reason of illegality.*** 1. Flowing from the succinct and apt discussion in the decisions [supra], it is my finding and holding that constructive trust cannot sprout out of the illegal sale agreement; or criminal conduct. A finding to the contrary, would be tantamount to sanctioning an illegality and white washing a criminal offence on the face of **Section 45 of the Law of Succession Act, Chapter 160, Laws of Kenya.** 2. Moreover, it is common ground that constructive trust is an equitable principle or doctrine. Being an equitable doctrine, same follows the law. To my mind, equity cannot be deployed to defeat, or circumvent clear and explicit provisions of the law. Such an endeavor, if countenanced, would render the **Provisions Section 3 of the Judicature Act, Chapter 8 Laws of Kenya**, redundant .[ See also the holding in the case of **Rose Wakanyi Karanja and 4 Others versus Geoffrey Chege Kirundi and Another [2016] eklr]** 3. It is also important to state that the totality of the evidence which was tendered by the respondent did not highlight constructive trust. On the contrary, the evidence tendered by the respondent demonstrated that the respondent was clearly seeking specific performance, albeit disguised as [sic] constructive trust. Simply put, there was not iota of evidence speaking to trust. Consequently, and in the regard, there was no basis to warrant inferring trust, taking into account the explicit caution at the foot of paragraph 31 in the case of **Kazungu Fondo Shutu [*supra].*** 4. Before concluding on this issue, I wish to point out that the learned trial magistrate misapprehended and misapplied the ratio in the case of **Macharia Mwangi Maina and 87 others versus Davidson Mwangi Kagiri [2014] eKLR,** wherein the court of appeal invoked the doctrine of Constructive trust. 5. I wish to point out that in the case of **Macharia Mwangi Maina** [supra], the vendor, who entered into and executed the sale agreement[s], was the lawful and registered owner of suit property. In addition, it is him [registered owner] who permitted the claimants to enter upon and to remain in occupation of the suit properties. In the said circumstances, the inequitable conduct of the said owner, warranted the invocation and application of the doctrine of the constructive trust. 1. Sadly, the facts of the subject matter are not the same as those that obtained in the case of **Macharia Mwangi Maina** [supra]. In this regard, the decision that was referenced and relied upon by the trial court is clearly, distinguishable. 2. Similarly, it is my humble position that the decision in the case of **Shah and 7 others versus Mombasa Bricks and tiles limited and 5 others [2023] KESC 106**, was equally inapplicable. Notably, the supreme court illuminated the circumstances where constructive trust will arise in connection with the legal title to the property. In this case, the appellant did not have any legal title that could underpin the impugned transaction and thus constitute [sic] a basis for constructive trust. 1. I now wish to deal with the second issue. The issue touches on and concerns the reliefs, if any, which ought to issue. The respondent had sought an order to transfer two [2] acres out of the suit property unto him. However, while discussing issue number one, I have found and held that no basis was established to warrant such a transfer, either on the basis of Constructive trust, or otherwise. 2. Additionally, I have also found and held that the respondent did not prove/establish his claim [sic] on the basis of constructive trust. For good measure , I have found that the learned trial magistrate misapprehended the facts of the case and the legal implications of a contract which is void. 1. Other than the foregoing, it is not lost on me that the respondent did not make a claim for refund of the purchase price. One would have expected respondent to lay an alternative claim for refund. No such claim was laid. However, the evidence on record shows that the appellant offered to refund the purchase price. 2. This is what the appellant stated during cross examination: ***“I am ready to refund him”*** 1. On re-examination the appellant stated thus: *“I am ready to refund the price.” He had been using the land and reaping from it. There are tea bushes”.* 1. From the testimony by and on behalf of the appellant, it is apparent that the appellant has been ready and willing to refund the purchase price. Further, and in any event, it would be unconscionable to allow the appellant to retain both the portion of the land which was [sic] sold and the purchase price. Such conduct would amount to unjust enrichment. 2. In the case of **Standard Chartered Financial Services Limited v Manchester Outfitters (Suiting Division) Limited Now Called King Woolen Mills Limited & 2 others [2025] KESC 68 (KLR**), the Supreme Court [the Apex Court] discussed the concept of unjust enrichment. 3. The apex court stated thus: **In**[***Chase International Investment Corporation and Another v Laxman Keshra and 3 others***](https://kenyalaw.org/akn/ke/judgment/keca/1978/7)**[1978] KECA 7 (KLR), Madan, Wambuzi (as they then were) & Law, JJA, Madan, JA, citing with approval, Goff and Jones in their treatise, Law of Restitution (page 11), made the point that:“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. There are many circumstances in which a defendant may find himself in possession of a benefit which, in justice, he should restore to the plaintiff. Obvious examples are where the plaintiff has himself conferred the benefit on the defendant through mistake or compulsion. To allow the defendant to retain such a benefit would result in his being unjustly enriched at the plaintiff’s expense, and this, subject to certain defined limits, the law will not allow ... The principle of unjust enrichment presupposes three things: first, that the defendant has been enriched by the receipt of a benefit; secondly, that he has been so enriched at the plaintiff’s expense; and thirdly, that it would be unjust to allow him to retain the benefit”.** 1. Bearing in mind the principles in the case of **Jabane versus Olenja [1986] EKLR and Mwangi & another v Wambugu [1984] KECA 13 (KLR),** I am minded to and do hereby depart from the conclusion[s] of the learned trial magistrate. 2. To my mind, the conclusions were premised on mis-apprehension and misconstruction of the legal principles and the obtaining jurisprudence. **Final orders:** 1. Flowing from the analysis in the body of the Judgement, the final orders that commend themselves to the court are: * 1. ***The Appeal be and is hereby allowed.*** 2. ***The Judgment of the learned trial magistrate and the decree arising therefrom be and is hereby set aside.*** 3. ***In lieu thereof, an order be and is hereby made dismissing the respondent’s suit vide Plaint dated 02.05.2023.*** 4. ***The Appellant’s counter claim dated the 02.06.2023 be and is hereby allowed on the following terms.*** 1. ***A declaration be and is hereby issued to the effect that the sale agreement dated the 14.09.2004 was illegal, unlawful and void ab intio.*** 2. ***The respondent be and is hereby ordered to vacate the suit property and hand over vacant possession to the appellant within 90 days from the date hereof.*** 3. ***In default to vacate and hand over vacant possession in terms of clause [b] above, appellant shall be at liberty to evict the respondent. In this regard, an eviction order shall issue.*** 5. ***The Appellant be and is hereby directed to refund to and in favour of the respondent the sum of Kshs. 700,000/= only [being the purchase price that was paid to the appellant.].*** 6. ***The refund of the purchase price shall accrue interest at court rates [14%] from the date of filing the suit in the lower court.*** 7. ***Each party shall bear own costs of the appeal.*** 8. ***Each party shall equally bear own costs of the proceedings in the lower court.*** 2. It is so ordered. **DATED, SIGNED AND DELIVERED AT MERU ON 2ND JULY, 2026.** **OGUTTU MBOYA; FCIArb; CPM [MTI-EA].** **JUDGE.** In the presence of: Court Assistant: Zakayo /Mukami Mr. Otieno Opiyo holding brief for Mr. Mwirigi Kaburu for the Appellant Mr. Mwenda Mwarania for the Respondent