https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5065

Tikolo v Bethwell (Environment and Land Case E010 of 2024) [2026] KEELC 5065 (KLR) (23 July 2026) (Judgment) Neutral citation: [2026] KEELC 5065 (KLR) Republic of Kenya In the Environment and Land Court at Homa Bay Environment and Land Case E010 of 2024 JW Wanyonyi, J July 23, 2026 Between Kentice Libutsuli Tikolo Plaintiff and Juma Boy Bethwell Defendant Judgment 1.By a Plaint dated 23rd September 2024, the Plaintiff instituted this suit against the Defendant seeking the following orders:a.That mutation of the suit land be ordered and the Plaintiff be given back her portion measuring 13 acres.b.An order of specific performance directing the Defendant to transfer 13 acres to the Plaintiff out of land parcel No. Homabay/Kamdar/905, and in default, the Deputy Registrar of this Court be authorized to execute all the necessary documents to facilitate the transfer.c.In the alternative, and without prejudice to the foregoing prayers, an order directing the Defendant to refund the entire purchase price received together with interest at commercial rates and all expenses incurred by the Plaintiff.d.Costs of the suit together with interest at court rates from 8th September 2021.e.Any other relief that this Court may deem just and expedient. 2.The Defendant entered appearance but did not file a defence despite being served with summons to enter appearance and subsequent mention notices and hearing date. Consequently, the matter proceeded by way of formal proof. Plaintiff's Case 3.The Plaintiff testified and adopted his witness statement dated 23rd September 2024 together with the bundle of documents filed contemporaneously with the Plaint. 4.It was the Plaintiff's evidence that sometime in 2021, the Defendant approached one Kennedy Onyango Owuocha to source for a purchaser for land parcel No. Homabay/Kamdar/905. The Defendant explained that he urgently required funds to enable his daughter pursue university education. 5.The Plaintiff testified that upon conducting inquiries at the Land Adjudication Office, he discovered that the property was still registered in the name of Joseph Odongo Kiburo (deceased). The Defendant informed him that the deceased was his uncle who had died without leaving a spouse or children and that he was the beneficiary of the estate. 6.Initially, the Plaintiff declined to proceed with the transaction until succession proceedings had been undertaken. However, following the Defendant's assurance that succession would immediately be commenced and after obtaining confirmation from the area Chief regarding the Defendant's relationship with the deceased, the Plaintiff agreed to purchase the land. 7.Consequently, the parties executed a sale agreement dated 8th September 2021 whereby the Plaintiff agreed to purchase 13 acres from parcel No. Homabay/Kamdar/905. The Defendant undertook to institute succession proceedings and thereafter transfer the agreed portion to the Plaintiff. 8.The Plaintiff testified that the Defendant successfully obtained a confirmed grant on 18th May 2022 and subsequently caused the suit property to be transferred into his own name. 9.The Plaintiff further testified that he paid the Defendant a total sum of Kshs. 1,950,000/= pursuant to the sale agreement. 10.Thereafter, the Plaintiff engaged a surveyor to ascertain the acreage on the ground. According to the survey report, the land measured approximately 22.80 acres, which exceeded the acreage reflected in the land records. 11.As a result, the parties executed an addendum agreement through which the Plaintiff purchased the additional acreage for a further consideration of Kshs. 450,000/=, bringing the total consideration paid to Kshs. 2,400,000/=. 12.The Plaintiff testified that despite receiving the full purchase price and becoming the registered proprietor of the land, the Defendant declined to honour the agreements and instead sold the entire parcel to a third party, thereby frustrating completion of the transaction. 13.The Plaintiff consequently urged the Court to grant the prayers sought in the Plaint. 14.The Plaintiff also filed written submissions, which this Court has carefully considered together with the pleadings and evidence on record. Issues for Determination 15.Having considered the pleadings, evidence and submissions, the issues falling for determination are:a.Whether there was a valid agreement for sale of a portion of land parcel Homabay/Kamdar/905 between the plaintiff and the defendant?b.Whether the defendant had capacity to enter into an agreement for sale of the suit property which was registered in his uncle’s name property when he held no letters of administration to his late father’s estate?c.What orders/reliefs should the court grant? Determination 16.The issues identified cannot easily be discussed and analysed in isolation as they are cross cutting and merge into each other. I will therefore condense the issues and discuss and analyse them together but will endeavor to illustrate how each of the issues has been resolved. 17.The plaintiff’s case undoubtedly is predicted on the agreements for sale made on 8th September 2021 and 3rd May 2022 between the plaintiff and the defendant. As per the two agreements and as pleaded by the plaintiff, the land the subject of the sale was registered in the name of Joseph Odongo Kiburo who was deceased. 18.It is evident that the defendant was not the registered owner of the land that he purported to enter into an agreement to sell portion of. It follows therefore he could not enter into a valid agreement that could be enforced against him in regard to the subject land. The only circumstance under which he could deal with the land, if he was not the registered owner, is if he had a lawful and valid power of attorney from the registered owner; or if the registered owner was deceased as in the present matter, if he held grant of letters of administration to the estate of the deceased. I would on the first issue find and hold that the defendant could not enter into a valid agreement for the sale of a portion of the suit property that was binding. 19.The second issue, as the first issue, relates to the capacity of the defendant to enter into the agreement of sale when his father who was the registered owner was deceased. Section 82 of the Law of Succession Act Cap 160 Laws of Kenya makes it clear that, it is only the administrator of a deceased estate has power to deal with the estate of a deceased person. 20.Section 82 (a) (b) & (c) of the Act provide as follows:-82.Powers of personal representatives personal representatives shall, subject only to any limitation imposed by their grants, have the following powers:-a.to enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arising out of his death for his personal representative;b.to sell or otherwise turn to account, so far as seems necessary or desirable in the execution of their duties, all or any part of the assets vested in them, as they think best: Provided that—i.any purchase by them of any such assets shall be voidable at the instance of any other person interested in the asset so purchased; andii.no immovable property shall be sold before confirmation of the grant;c.to assent, at any time after confirmation of the grant, to the vesting of a specific legacy in the legatee thereof;Section 45 (1) of the Act forbids any intermeddling with property of a deceased person and provides as follows :-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. 21.When the court in in re Estate (Deceased) (2017) eKLR, was faced with similar situation held as follows;“Acquisition of land before confirmation of grant is unlawful and does not enjoy property rights under the Constitution.Upon meticulous consideration of the protest, all arguments filed and the law, I am of the following persuasion. I will restate once again what I stated in the case of the Matter of the Estate of M'Ajogi M'Ikiugu alias Ikiugu Ajogi (Deceased) on sale of estate property before confirmation of grant as follows: -Sale of estate property before confirmationCourts have said time and again- and I will not be tired of stating it again- that, under section 82(b) (ii) of the law of Succession Act, sale of immovable property of the estate before confirmation of grant is prohibited. Again, under section 55 of the Law of Succession Act, the law has placed restriction on distribution of any capital assets of the estate before confirmation of grant.Therefore, no person shall have any power or legal authority or capacity to sell immovable property of the deceased before confirmation of grant. As such, any such attempted sale of immovable property of the estate before confirmation of grant shall be null and void for all purposes and intents. I need not also state that beneficial interest of a person beneficially entitled to a share in the estate must be identified and be capable of registration in his name before it could be sold or pledged as security or exchanged establishes the respective identities and shares of persons beneficially entitled, and another type of property. It is during confirmation hearing that the court when confirmed the grant specifies such persons and their respective shares. Therefore, before confirmation, the interest of the beneficiary remains amorphous and entangled within the estate; and vested in the administrator or executor as the estate property as by law stated Estate.But for completeness of the foregoing discourse, I wish to go two steps up. First, a void transaction is in law a nullity. It is not only bad, but incurably bad. And every proceeding or perceived right which is founded on it is not only bad but incurably bad. On this I can do no better than Lord Denning M.R in the case of Macfoy V United Africa CO. LTD [1961] 3 All ER 1169 at pg. 1172 that:“...If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. void without more ado, though it is sometimes convenient to have the court declare There is no need for an order of the court to set aside. It is automatically null and bad. You cannot put something on nothing and expect it to stay there. It will it to be so. And every proceeding which is founded on it is also bad and incurably collapse".Second, any acquisition of land in violation of the Law of Succession Act is unlawful and a finding to that effect by a competent court brings the acquisition within the claw-back provisions of article 40(6) of the Constitution which declare that: -The rights under this Article do not extend to any property that has been found to have been unlawfully acquired. 22.At all material time, the suit property was in the name of the deceased until 28th October 2022 when the suit was transferred to the defendant’s name see PExh 18, a copy of green card. Consequently, as at 8th September 2021 and 3rd May 2022 when the defendant and the plaintiff purported to enter into a sale agreement, the property was in the name of Joseph Odongo Kiburo the defendant’s uncle who was then deceased. The defendant did not hold a grant of letters of administration which would have enabled him to deal with the property of the deceased. 23.The defendant had no capacity to enter into any sale agreement affecting the property of his deceased uncle. The purported agreement was therefore null and void abinitio. The act by the defendant constituted intermeddling with the property of a deceased person in terms of section 45(I) of the Law of Succession Act. The issue of capacity of the defendant to enter into the contract giving rise to the cause of action is paramount. If the defendant lacked capacity to enter into the agreement as I have found, the agreement he entered into was unlawful and illegal and the same could not give rise to any enforceable rights. 24.Similarly, Section 55 of the Law of Succession Act provides that no grant of representation, whether or not limited in its term, shall confer power to distribute any capital assets, or make any division of property, unless and until the grant has been confirmed as provided by Section 71 of the Succession Act. In the case of In re Estate of Paul M’Maria (Deceased) [2017] eKLR, the Court held that;“ [10]The restriction provided by law that no immovable property shall be sold or distributed before confirmation of grant is not merely directory or an embellishment. It is a statutory command with fatal consequences on any transaction done in contravention of the said law. Accordingly, acquisition of immovable property of the estate in contravention of the Law of Succession Act is tinctured with killer poison; and is unlawful acquisition; thus, property so acquired does not enjoy the protection of property rights under article 40(6) of the Constitution. See the claw-back provision of the Constitution that: -40(6)The rights under this Article do not extend to any property that has been found to have been unlawfully acquired.” 25.It is trite that without a confirmed grant, the defendant could not enter into any sale agreement for sale of immovable property of the estate. 26.In the alternative, the plaintiff prays for an order directing the Defendant to refund the entire purchase price received together with interest at commercial rates and all expenses incurred by the Plaintiff. 27.Having found that the agreements for sale dated 8th September 2021 and 3rd May 2022 were null and void ab initio for want of capacity on the part of the Defendant, the question that arises is whether the Plaintiff should be left without a remedy notwithstanding that the Defendant admittedly received the purchase price. The answer must be in the negative. Although the Court cannot enforce an illegal or void contract by granting specific performance, it is equally settled that where one party has received money under a transaction which is subsequently found to be void, the law imposes an obligation to restore the benefit received so as to prevent unjust enrichment. 28.In Karanja Mbugua & Another v Marybin Holding Co. Ltd [2014] eKLR, the Court held that where a contract for the sale of land is incapable of performance or is otherwise unenforceable, the purchaser is entitled to restitution of the purchase price paid. 29.The same principle was expressed by the Court of Appeal in National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR, where the Court observed that although courts do not rewrite contracts for parties, where a transaction fails or is incapable of performance, relief founded on restitution may be available so as to restore the parties to the position they occupied before the transaction. 30.In the present case, the Plaintiff proved by uncontroverted evidence that he paid the Defendant Kshs. 2,400,000/= being the agreed purchase price under the two agreements. The Defendant thereafter obtained registration of the suit property in his own name but failed and refused to transfer the agreed portion to the Plaintiff, instead disposing of the entire parcel to a third party. Having received and retained the Plaintiff's money while being unable to confer any lawful interest in the land, the Defendant would be unjustly enriched if he were permitted to retain the purchase price. Equity and justice demand that the money be refunded. 31.The Plaintiff has also prayed for interest at commercial rates together with reimbursement of expenses incurred. However, no evidence was tendered to establish the applicable commercial lending rate or to specifically prove the expenses allegedly incurred in the transaction. It is settled that special damages must not only be specifically pleaded but must also be strictly proved. In Hahn v Singh [1985] KLR 716, the Court of Appeal held that special damages must be specifically pleaded and strictly proved before they can be awarded. Likewise, an award of interest at commercial rates must be supported by evidence of the applicable rate. In the absence of such evidence, the Court declines to award commercial interest and instead awards interest at court rates pursuant to Section 26(1) of the Civil Procedure Act, Cap. 21 Laws of Kenya, from the date of filing suit until payment in full. 32.On the issue of costs, the general principle is that costs follow the event unless the Court, for good reason, orders otherwise. This principle is codified under Section 27(1) of the Civil Procedure Act, Cap. 21 Laws of Kenya, which vests the Court with discretion on costs, though such discretion must be exercised judicially. In the present case, the Plaintiff has substantially succeeded in his claim by obtaining judgment for a refund of the purchase price after establishing that the Defendant unlawfully received and retained his money. I find no reason to depart from the general rule. Accordingly, the Plaintiff shall have the costs of the suit. Final Orders 33.Accordingly, judgment is entered for the Plaintiff against the Defendant as follows:a.The Plaintiff's prayer for specific performance is declined.b.Judgment is entered for the Plaintiff against the Defendant in the sum of Kenya Shillings Two Million Four Hundred Thousand (Kshs. 2,400,000/=) being the purchase price paid.c.The said sum shall attract interest at court rates from the date of filing the suit until payment in full.d.The Plaintiff's claim for commercial interest and reimbursement of expenses is declined for want of proof.e.The Plaintiff shall have the costs of the suit.f.Judgement in favour of the plaintiff in terms of prayer (c) and (d). Prayer (a) and (b) dismissed.g.File closedIt is so ordered. JUDGMENT, DATED AND DELIVERED VIA THE TEAMS’ PLATFORM AT HOMA BAY THIS 23RD DAY OF JULY 2026.In the Presence of;Nyagol for the Plaintiff -PresentNo appearance for the defendantCourt Assistant; Awino. JUSTICE J.W WANYONYI – JUDGE