https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4562

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MERU** **ELC APPEAL NUMBER E016 OF 2026** JULIUS MWITI M’INIBU……………………………….…….APPELLANT VERSUS SAMUEL MITHIKA M’AUIRI ………………………….1ST RESPONDENT *[An appeal from the Judgment/Decree of the Chief Magistrate Court at Maua by Hon. Ken Muchiri [SRM] delivered on 5th November, 2025 in MCELC Case Number 3 of 2019]* **JUDGMENT** 1. The dispute that underpins the subject appeal, turns and touches on the incidence of trespass. The key question relates to whether the Appellant herein, who is reported to have entered into and executed a sale agreement with one Geoffrey Mugambi Kaberia [now deceased], in respect of a portion of a property belonging to a deceased person, acquired any lawful rights to, or Interest[s] over the designated portion or otherwise; or whether his entry constitute[s] trespass. 2. What amounts to trespass has been the subject of various court decisions. It suffices to reference the holding of the Court of Appeal in the case of **Church Commissioners for Kenya of the Anglican Church of Kenya v Wayuga [2024] KECA 1048 (KLR),** where the court stated thus: **52. “*Trespass is described under the***[***Trespass Act***](https://kenyalaw.org/akn/ke/judgment/keca/2024/1048/aknkeact196248)***Cap 294 to mean “any person who without reasonable excuse enters, is or remains upon, or erects any structure on, or cultivates or tills, or grazes stock or permits stock to be on, private land without the consent of the occupier thereof”. On the other hand, a continuing trespass is defined in Jowitt’s Dictionary of English Law 2nd Edition (page or paragraph?) as follows:-“A continuing trespass is one which is permanent in its nature; as where a person builds on his own land so that part of the building overhangs his neighbor’s land”.In Black’s Law Dictionary 8th Edition (page or paragraph?), a continuing trespass is defined as:-“A trespass in the nature of a permanent invasion on another’s rights, such as a sign that overhangs another’s property.”Finally, in Clerk & Lindsel on Torts 16th Edition, paragraph 23 - 01, it is stated that:-“Every continuance of a trespass is a fresh trespass of which a new cause of action arises from day to day as long as the trespass continues.”*** **53.*From the above definitions of the term “trespass” by the eminent learned authors, it is clear that any unauthorized entry whether present or continuous is trespass. In this case, it is indeed common ground that the Appellant entered into and has remained in occupation of the suit property. The appellant’s continued occupation of the said property from the 1st date of entry in so far as it is unauthorized by the Respondent amounts to trespass and remains as such to date. The respondent’s claim for trespass being a continued tort is, therefore, not time barred.”*** 1. Before venturing to interrogate the key question, namely; whether the acts complained of constituted trespass or otherwise, it is imperative to provide the background facts underlining the subject dispute. The facts are rather straight forward. 2. On or about the 03.11.2018, the Appellant herein is reported to have entered into a sale agreement with one Geoffrey Mugambi Kaberia. The sale agreement touched on and concerned a portion measuring 0.20 acres, out of LR Number Nathu/Nathu/81 [hereinafter referred to as the original parcel of land]. The original parcel of land belonged to and was registered in the name of M’Awiri Baibaya [deceased]. 3. The sale agreement in question shows that the vendor was selling to and in favor of the Appellant a portion of the original parcel of land, which was to be excised from the land subsequent to the issuance of letters of administration. It is shown that at the time of sale, the estate of M’Awiri Baibaya [deceased] had not been succeeded. Furthermore, it is conceded that the vendor was not the appointed legal administrator. 4. The Appellant posited that upon entry into and execution of the sale agreement, same [appellant] entered onto, took possession of and commenced to use the designated portion of the original parcel of land. The Appellant maintained that he is a lawful purchaser. 5. On the other hand, the Respondent posits that the original parcel of land belonged to and was registered in the name of his [respondent’s] father, who was deceased at the time when the impugned sale agreement was entered into and executed. In addition, the Respondent has averred that Geoffrey Mugambi Kaberia [now deceased] was his brother. Moreover, it has been contended that the original parcel of land had been demarcated between him, his elder brother and Geoffrey, [now deceased]. 6. Additionally, the Respondent stated that even though the original parcel of land had been demarcated and each of the three brothers, had been given own portion, the estate had not been succeeded. He avers that Geoffrey Mugambi Kaberia, [now deceased], who was in occupation of his portion, proceeded to and sold the portion that had been demarcated for and belonged to him. 7. It was the further averment of the Respondent that when the Appellant entered onto the disputed portion of land, he [respondent] endeavored to stop the appellant. However, it has been contended that the Appellant engaged goons and criminals to protect his occupation of the disputed portion of land. 8. Flowing from the foregoing, the Respondent has posited that his brother Joseph Mwenda and himself [respondent] procured grant of letters of administration and thereafter filed the suit before the lower court. In addition, it has been stated that the estate of the deceased was subsequently succeeded and the original parcel of land, was subdivided culminating into the creation of inter alia Nathu/Nathu/10554 [herein after referred to as the suit property]. 9. The suit in the lower court was heard and disposed of *vide* Judgment delivered on the 05.11.2025, whereupon the learned trial magistrate [Hon. Ken Muchiri – Senior Resident Magistrate] found and held that the dealing between the Appellant and one Geoffrey Mugambi Kaberia, over and in respect of a portion of the original parcel of land amounted to intermeddling with the estate of a deceased. In addition, the learned trial magistrate also found that following the succession of the estate of the deceased and the conclusion of the distribution, the disputed portion formed part of the suit property. 10. Furthermore, the learned trial magistrate found and held that the suit property belongs to and is registered in the name of the respondent. To this end, the learned trial magistrate proclaimed that the Respondent was entitled to absolute and exclusive possession of the suit property. On the contrary, the learned trial magistrate found that the occupation of a portion of the suit property by the appellant, albeit without the consent of the Respondent constituted trespass. 11. With the foregoing findings and conclusions, the learned trial magistrate entered Judgment in favour of the Respondent and decreed that the Appellant shall vacate the disputed portion of the suit property; and in default be evicted therefrom in compliance with the provisions of **Section 152G of the Land Act, 2012 [2016].** 12. Dissatisfied with the Judgment and the consequential decree, the Appellant has now approached this court *vide* memorandum of appeal dated the 16.02.2026. 13. The grounds underpinning the appeal are: 14. ***That the learned trial magistrate erred in law and in fact, and misdirected himself by finding that the Respondent had proved his case on a balance of probabilities.*** 15. ***That the learned trial magistrate erred in law and in fact, by failing to properly evaluate and consider the appellant’s evidence on the lawful purchase of a portion of Land from a land parcel No. Naathu/Naathu/81 measuring 0.20 acres from, Geoffrey Mugambi, a beneficiary of the estate, thereby disregarding the Appellant’s purchaser’s and equitable interest.*** 16. ***That the learned trial magistrate erred in law by finding that the Appellant had intermeddled with the estate of the deceased person in the absence of pleadings or proof.*** 17. ***That the learned trial magistrate misdirected himself by determining the succession related issues in an Environment and Land matter arising from a deceased’s estate without the benefit of het succession proceedings, contrary to the established principles on jurisdiction and forum.*** 18. ***That the learned trial magistrate erred in law by holding that the respondent’s title was absolute and indefeasible under Section 26 of the Land and Registration Act without considering the circumstances under which the title was acquired and existing purchaser’s interest and equitable interests.*** 19. ***That the learned trial magistrate erred in law and by failing to appreciate that the appellant’s evidence raised serious questions as to whether Land Parcel No. Naathu/Naathu/10554 arose from or affect land parcel no. Naathu/Naathu/81 and by failing to order or survey, boundary, or expect determination to conclusively resolve the dispute.*** 20. ***That the learned trial magistrate erred in law and fact by granting permanent injunction and eviction orders without sufficient proof of trespass or consideration of whether the damages were an adequate remedy.*** 21. ***That the learned trial magistrate erred in law and in fact by failing to consider and apply the doctrine of equity, constructive trust , and proprietary estoppel, despite clear evidence that the Appellant paid the full purchase price and took possession pursuant to a sale agreement.*** 22. ***That the learned trial magistrate erred in law by granting eviction orders under Section 15G of the Land Act without satisfying the statutory threshold for eviction and without due consideration of the appellant’s occupation and purchaser’s rights.*** 23. ***That the learned trial magistrate failed to consider the appellants’ submission’s, evidence and authorities in totality, thereby arriving at a decision that is against the weight of the evidence on record.*** 24. ***That the learned trial magistrate failed to consider the appellant’s evidence, submissions and authorities in totality, rendering the decision against the weight of the evidence.*** 25. The instant appeal came up for direction[s] on the 14.05.2026, whereupon learned counsel for the Appellant intimated to the court that the same had filed and served the record of appeal. In addition, learned counsel posited that the record of appeal was complete. Thereafter, learned counsel invited the court to issue directions as pertains to the disposal of the appeal. Furthermore, counsel proposed to have the appeal canvassed by way of written submissions. 26. With the concurrence of learned counsel for the respondent, the court proceeded to and issued directions. The directions were : The appeal shall be heard before one Judge sitting at Meru; the appeal shall be canvassed by way of written submissions; the Appellant shall file and serve written submissions within 14 days from the date of the directions; the Respondent shall file and serve written submissions within 14 days from the date of service; 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 21.05.2026, and wherein he [Appellant] has canvassed six [6] key issues. The issues are: The learned trial magistrate failed to properly evaluate the evidence on record and thus arrived at an erroneous conclusion that the Respondent had proved his case; the learned trial magistrate failed to appreciate that the Appellant acquired purchaser’s and equitable rights over the disputed portion of the suit property; the learned trial magistrate erred in law in finding and holding that the Appellant was guilty of intermeddling with the estate of the deceased; the learned trial magistrate erred in determining succession issues albeit without jurisdiction; the learned trial magistrate erred in holding that the respondent’s title was absolute and indefeasible; the learned trial magistrate erred in failing to order survey or expert determination and the learned trial magistrate incorrectly/improperly issued orders of eviction. 28. The counsel for the Appellant has thereafter cited and referenced various decisions to anchor his submissions. The decisions cited are: **Kitiliti versus Kibet [2018] KECA 573; Maina and 87 others versus kagiri [2024] KECA 880; Mwangi Mbothu and 8 other versus Gachira Waitimu and 11 others [1986] KECA 24; and Mitubell Welfare Society versus Kenya Airport Authority and 2 others [2021] eKLR.** 29. Premised on the foregoing submissions, and coupled with the various decisions cited, learned counsel for the Appellant has contended that the impugned Judgment is coloured with several and grave errors. To this end, counsel has invited the court to find and hold that the appeal is meritorious. Simply put, the court has been implored to allow the appeal; set aside the impugned Judgment; and to dismiss the respondent’s suit in the lower court. 30. The Respondent filed written submissions dated the 22.06.2026 and wherein same [Respondent] has highlighted and canvassed four [4] key issues]. The issues are: The Appellant herein did not acquire or accrue any lawful rights to or in respect of the suit property; the transaction between the Appellant and Geoffrey Mugambi Kaberia was illegal and amounted to intermeddling with the estate of a deceased; Geoffrey Mugambi Kaberia did not have any capacity to sell the disputed portion of land; and the Appellant has no claim to the disputed portion of the suit land. 31. Additionally, it has been submitted that during the succession of the estate of the M’Amwiri Baibaya [deceased], the Appellant lodged an objection claiming entitlement to a portion of the estate on the basis of purchase. However, it was submitted that the objection by the Appellant was dismissed *vide* ruling delivered on the 21.06.2022 and wherein the trial court [Hon. Tito Gesora – Chief Magistrate] found that the Appellant was not a beneficiary of the estate. 32. Learned counsel for the Respondent has thereafter submitted that the leaned trial magistrate correctly evaluated the evidence on record and came to the correct conclusion[s]. It has been contended that the respondent, by virtue of being the registered proprietor of the suit property, was entitled to exclusive occupation and possession. In addition, it has been posited that the offensive actions by the Appellant constituted trespass. 33. Having reviewed the record of appeal; the grounds of appeal; the evidence tendered [both oral and documentary]; the impugned Judgment; and upon consideration of the written submissions by / on behalf of the respective parties, two [2] key issues emerge for determination. The issues are: Whether the Respondent duly established and proved his claim to the requisite standard; and Whether the Appellant established entitlement to or in respect of the disputed portion of land. 34. 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 applicable legal principles. 35. 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 and conclusion 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 the finding[s] of the Trial Court. 36. 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. The jurisdiction cannot be exercised for the mere asking. It cannot be invoked at will. 37. 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).** 38. The Court of Appeal expounded on the scope of the jurisdiction. 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 revisited the jurisdictional remit in the case of **Kenya Urban Roads Authority & another v Belgo Holdings Limited [2025] KECA 764 (KLR).** The Court highlighted cthe 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 Appeals 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 duly established and proved his claim to the requisite standard. 2. To begin with, it is worthy to recall and reiterate that the burden of proof lay on the respondent, who was the plaintiff in the lower court, to demonstrate his right to the suit property. In addition, the Respondent was called upon to show that the actions complained of, constituted and or amounted to trespass. 3. The Respondent provided background to the claim before the court. It was the testimony of the Respondent that what now constitutes the suit property, was part of the original parcel of land, which belonged to and was registered in the name of M’Amwiri Baibaya [deceased]. In addition, the Respondent testified that the original parcel of land was shared between Joseph Mwenda; Geoffrey Mugambi Kaberia; and himself [respondent]. Furthermore, the Respondent posited that even though the land was shared, the estate of the deceased had not been succeeded. 4. Additionally, the Respondent posited that upon the sharing of the original parcel of land, Joseph Mwenda and Geoffrey Mugambi Kaberia [now deceased] entered upon, took possession of and developed their respective portions. However, the Respondent averred that his portion of the original parcel of land was not developed. 5. It was the further testimony of the Respondent that his brother [Geoffrey Mugambi Kaberia- deceased] entered into a sale agreement with the Appellant herein and purported to sell to the Appellant a portion of the original parcel of land. Moreover, the Respondent averred that the portion which was allegedly being sold, constituted the portion which had been marked and assigned to him. 6. Be that as it may, the Respondent contended that when the Appellant commenced his actions on the disputed portion of land, he [respondent] tried to stop the appellant. However, the Respondent posited that the Appellant remained adamant and employed goons to protect his [appellant’s] occupation of the disputed portion of land. 7. Fast forward, the Respondent averred that the estate of his deceased father [M’Amwiri Baibaya – deceased] was later succeeded and thereafter, distributed amongst the beneficiaries. The Respondent stated that his portion of the estate was assigned as LR No. Nathu/Nathu/10554 [the suit property]. 8. In addition, the Respondent testified that the portion being occupied and used by the Appellant falls within the suit property. It has been averred that the offensive actions have been undertaken without the consent and permission of the respondent. To this end, the Respondent maintains that the appellant’s actions constitutes trespass. For good measure, the learned trial magistrate agreed. 9. On my part, I wish to state that insofar as the Respondent is the lawful and registered owner of the suit property, same is entitled to absolute and exclusive rights thereto. The scope and extent of the respondent’s rights to the suit property are delineated by the provisions of **Sections 24 and 25 of the Land Registration Act, 2012 [2016].** 10. Based on the provisions of **Sections 24 and 25 of the Land Registration Act, 2012 [2016],** there is no gainsaying that the Appellant cannot enter upon and remain on the suit property or any portion thereof, without the consent/permission of the respondent. Any act which interferes with the respondent’s right of the suit property, would certainly amount to and constitute trespass. 11. In the case of **Doshi v Chemutut & 7 others [2025] KECA 776 (KLR)** ***,*** the Court of Appeal stated thus: ***“Trespass, as stated by this Court in the case of Charles Ogejo Ochieng v Geoffrey Okumu [1995] KECA 169 (KLR), is an injury to a possessory right, and therefore the proper plaintiff in an action of trespass to land is the person who has title to it, or a person who is deemed to have been in possession at the time of the trespass. As for the ingredients of trespass, the Court in William Kamunge Gakui v Eustace Gitonga Gakui (Civil Appeal 16 of 2013) [2014] KECA 39 (KLR) stated that trespass is a violation of the right to possession, and that a plaintiff must prove that he has the right to immediate and exclusive possession of the land. Justice Chemutut did not name Mr. Doshi as a defendant in the suit.”*** 1. Flowing from the foregoing analysis, and guided by the holding of the court in the case of **Mohansons (Kenya) Limited v Registrar of Titles & 2 others [2017] KEELC 2730 (KLR),** I do find and hold that the Respondent duly proved his claims to and in respect of the suit property. In addition, the Respondent also established the claim of trespass as against the appellant. 2. I now wish to turn to the second issue. The issue is; whether the Appellant established entitlement to and in respect of the disputed portion of the suit property. The appellant’s claim arises from a purported sale agreement entered into with one Geoffrey Mugambi Kaberia. The impugned sale agreement related to the sale of a portion of the original parcel of land belonging to and registered in the name of M’Amwiri Baibaya, who was deceased at the time of the sale agreement. 3. In addition, it is common ground that by the time Geoffrey Mugambi Kaberia was entering into the sale agreement, same [Geoffrey Mugambi Kaberia] had not been constituted as the administrator of the estate of the deceased]. Suffice it to state that Geoffrey Mugambi Kaberia, did not have capacity to sell or alienate a portion of the estate. [See the provisions of **Sections 79 and 82 of the Law of Succession Act, Chapter 160 Laws of Kenya**. 4. Furthermore, it is not lost on me that the dealings and transactions between the Appellant and Geoffrey Mugambi Kaberia, over and in respect of a portion of the original parcel of land, constituted and amounted into intermeddling with the estate of a deceased person. Such acts are prohibited by the provisions of **Section 45 of** **the Law of Succession Act, Chapter 160 Laws of Kenya.** 5. At this juncture, it is apposite to reproduce **Section 45 of the Law of Succession Act, Chapter 160 Laws of Kenya.** The section stipulates thus: **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. Without belaboring the point, the Appellant herein cannot be heard to contend that same acquired or accrued any purchasers’ rights to and in respect of the estate of the deceased and by extension, the suit property. Quite clearly, the illegal contract that was entered into between the Appellant and Geoffrey Mugambi Kaberia cannot birth any lawful rights, capable of being protected by a court of law. 2. In the case of ***Kenya Airways Limited v Flora [2013] KECA 545 (KLR),*** the Court of Appeal had this to say about an illegal contract[s], like the one beforehand. The court stated thus: ***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.”*** 1. From the foregoing holding, it is common ground that this court cannot deploy its machinery in an endeavor to ratify or sanction an illegal agreement that was entered into contrary to the provisions of **Section 45 of the law of Succession Act**. Suffice it to state that the learned trial magistrate correctly apprehended and correctly applied the law as pertains to intermeddling. The finding[s] of the Trial Court are apt and unassailable. **Conclusion** 1. The jurisdiction of this court to interfere with the findings and conclusions of the lower court are circumscribed. This court can only interfere with the findings of the facts, if and only if, the parameters set in the case of **Mwanasokoni versus Kenya Bus Services Limited [1985] eKLR**, are met. 2. Sadly, the Appellant herein did not establish or demonstrate any error either of facts or of law, that was committed by the learned trial magistrate. Moreover, I have reviewed the Judgment of the trial court and what comes out of same is that the Judgment is well reasoned; well grounded; and thus unassailable. **Final orders:** 1. Puling the threads together, I come to the conclusion that the appeal is *devoid* of merits. In the premises, the final orders are: 2. ***The Appeal be and is hereby Dismissed.*** 3. ***The Judgment of the lower court dated the 05.11.2025 and the consequential decree arising therefrom, be and are hereby Affirmed.*** 4. ***The Appellant herein shall vacate the suit property within*** ***90 days from the date hereof.*** 1. ***In default by the Appellant to vacate and hand over vacant possession in terms of clause [iii] hereof, the Respondent shall be at liberty to evict the appellant.*** 2. ***In the event of such eviction, the cost[s] plus expenses of the eviction shall be certified by the Deputy Registrar and thereafter be recovered from the appellant.*** 3. ***Costs of the appeal be and are hereby awarded to the Respondent.*** 4. ***The costs in terms of clause [vi] shall be agreed upon and in default be taxed in the conventional manner***. 1. It is so ordered. **DATED, SIGNED AND DELIVERED AT MERU THIS 13TH DAY OF JULY, 2026** **OGUTTU MBOYA, FCIArb; CPM [MTI].** **JUDGE** In the presence of**:** Court Assistant: Zakayo Mr. Gikunda Kiutha for the Appellant Ms. Asuma holding brief for Mr. Mutembei for the Respondent