https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5315

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NYERI** **ELC APPEAL NO. E018 OF 2025** **GEORGE MUTUNE KIAMA……....………………....…......1ST APPELLANT** **STEVE KABUITU WAMBUGU………………...………….2ND APPELLANT** **-VERSUS-** **ALFRED MWANGI WANJAU………………………….1ST RESPONDENT** **VIRGINIA NJERI MUTURI…………………...………..2ND RESPONDENT** ***(Appeal arising from the Judgment of the Learned Principal Magistrate, Hon. E.S Agade, in Mukurwe-ini PMC ELC Case No. E008 of 2021, delivered on May 20, 2025)*** **JUDGMENT** 1. The Appellant filed this Appeal from the Judgment of the Learned Principal Magistrate, Hon. E.S Agade, in **Mukurwe-ini PMC ELC Case No. E008 of 2021**, delivered on May 20, 2025. The Appellant's Memorandum of Appeal, dated June 5, 2025, sets out the grounds of appeal as follows: 2. **The learned trial magistrate erred in ruling that none of the orders requested by the Plaintiffs were granted.** 3. **The Learned Trial Magistrate erred in law by failing to find that the 1st Respondent (Defendant in the Trial Court) admitted the Appellants’ claim.** 4. **The Trial Court erroneously focused on the Succession Cause that had previously been addressed by both the same court and the High Court in Nyeri HCP&A Appeal No. 5 of 2018, thereby misdirecting itself in law and fact.** 5. **The Trial Court erred in law by allowing the 2nd Respondent’s counterclaim to evict the 1st and 2nd Appellants herein from land registration number Githi/Muthambi/2305 (which resulted from subdivisions of Githi/Muthambi/830).** 6. **The Trial Court committed an error of law in determining that the Appellants were not entitled to the reimbursement of Kshs.200,000/= from the 2nd Respondent.** 7. **The Trial Court committed a legal error by concluding that it lacked the authority to order compensation of Kshs.7,700,000/= pursuant to the doctrine of the fruit of the poisonous tree, which effectively constituted a validation of unjust enrichment.** 8. **The Trial Court committed a legal error by determining that the contract dated March 29, 2022, was still enforceable. However, it failed to enforce the contract and did not order the 1st Defendant to refund the full purchase price paid by each appellant.** 9. The Appellant prays for the following orders: 10. **That the appeal herein be permitted, the judgment of the Court below be rescinded, and the reliefs sought in the amended plaint be granted.** 11. **That the 2nd Respondent’s counterclaim be dismissed.** 12. **That the Appellants be awarded the costs of the appeal and of the Court below.** **Summary of the case before the trial Court** 1. The suit before the Trial Court was instituted vide the further amended Plaint dated 4th September 2023, in which the Plaintiffs averred that, by several Agreements entered into by them with the 1st Defendant, the 1st Defendant sold to them portions of 2 acres, 2 acres, 2 acres, 1 acre, and 1.9 acres, respectively, out of Land Parcel Githi/Muthambi/830, with the consent of the 2nd Defendant. 2. Both defendants are brother and sister and are the administrators of the estate of their late father, Wanjau Kimori (Deceased), who was the registered owner of the suit Land Parcel No. Githi/Muthambi/830. By judgment of the High Court, the estate of the deceased was ordered to be shared equally between the two Defendants. 3. The 1st Plaintiff purchased 2 acres of the suit land by agreement dated 29th June 2012 and developed the land. The 2nd Plaintiff also bought 2 acres by agreement dated 3rd October 2011. The 3rd Plaintiff also bought 2 acres of the suit land by agreement dated 3rd May 2011, and the 4th Plaintiff bought 1.9 acres by agreement dated 16th January 2012. The 5th Plaintiff bought 1 acre by agreement dated 29th June 2012. 4. The Plaintiffs averred that they all settled on the respective purchase prices of the portions of land that they bought and caused developments on them. 5. On the 12th of July 2022, the 1st and 3rd Plaintiffs lodged a caution in their favor on the suit parcel in a bid to protect their purchasers’ interest. However, the 1st and 2nd Defendants, by application to the High Court, sought to have the said caution removed, and the same was lifted by the Court on the 25th of May 2023. 6. Subsequent to the lifting of the caution, the defendants had the suit land subdivided into two portions, L.R No. Githi/Muthambi/2304 and L.R No. Githi/Muthambi/2305. 7. The 1st and 3rd Plaintiffs aver that the Defendants colluded to have the 2nd Defendant allocated the portion they occupy and have extensively developed, that is Githi/Muthambi/2305, a move they term fraudulent. 8. The Plaintiffs' claim against the Defendants was for a declaration that the Defendants have acquired the suit parcel in trust for the Plaintiffs and also prayed for an order that the Defendant transfers to the Plaintiffs the respective portions of land that they bought from them, or pay for the value of the developments thereon. 9. The 1st Defendant filed a further amended statement of defense dated 12th October 2023 in which he averred that it is the 2nd Defendant, his sister, who is attempting to unlawfully evict the Plaintiffs. 10. He also denied the existence of an agreement dated June 29, 2012, with the 1st Plaintiff under the Contract Act and added that the alleged acreage of some of the Plaintiffs does not match. 11. Further, the 1st Defendant averred that the various agreements entered into between himself and the Plaintiffs were unknown to the parties to be tainted with illegality, as the suit land was still registered in the name of the Defendants’ deceased father and confirmation of grant had yet to be issued in favor of the 1st Defendant. 12. He further averred that after he agreed to sell the Plaintiffs various portions of land and the Plaintiffs began developing them, the Chief of the area informed the Plaintiffs that no development should be carried out on the land until further notice, adding that the land was subject to the Land Control Act. 13. He denied any collusion or fraud between him and the 2nd Defendant, stating that they were only complying with the orders issued by the High Court in the Succession Case, and prayed that the suit be dismissed with costs. 14. The 2nd Defendant, on the other hand, filed an amended statement of defense and counterclaim, in which she stated that the suit violated the doctrine of *res judicata* and was fatally defective. 15. The 2nd Defendant also denied the existence of any contractual relationship between her and the plaintiffs and that the agreements between the plaintiffs and the 1st Defendant amount to intermeddling. 16. The 2nd Defendant admitted that the 1st and 3rd Plaintiffs paid the sum of Kshs.100,000/=, but stated that the sum was paid to cover the 2nd Defendant's costs incurred in defending this suit as a means of reaching an amicable settlement. 17. Further to her statement of defense, the 2nd Defendant filed a counterclaim averring that, by judgment of the Nyeri High Court in P & A Case No. 5 of 2018, the suit land **Parcel No. Githi/Muthambi/830** was transmitted to the defendants to hold in equal portions. 18. Subdivision subsequently followed into two so that each defendant would have their respective portions, but registration was halted by the caution registered by the 1st and 3rd Plaintiffs, which was removed by the High Court through a ruling delivered on 25th May 2023. 19. That prior to the said sub-division, the 1st and 3rd Plaintiffs had agreed with the 1st Defendant that he would transfer to them his share once transmission and transfer were completed. 20. The 2nd Defendant’s claim that the 1st and 3rd Plaintiffs are illegally occupying her portion of land known as LR. Githi/Muthambi/2305, which was sold to them by the 1st Defendant, who is still desirous of transferring his share to them. 21. The 2nd Defendant prayed for the suit to be dismissed and for an order evicting the 1st and 3rd Plaintiffs from her said parcel. 22. During the hearing of the suit, PW 1, the 1st Plaintiff, prayed that his claim be allowed as prayed in the Plaint and adopted his witness statement and bundle of documents as his evidence in chief. 23. During cross-examination, he stated that he bought land that was in the name of the 1st Defendant and sent money through his wife as agreed via M-Pesa whilst he was in Sudan. They, however, did not attend the Land Control Board. 24. When questioned, PW 1 stated that he did not know it was unlawful to buy land belonging to a deceased person. 25. PW 1 also stated that all purchasers paid money to the 2nd Defendant, stating that the Defendants want his developed part, which he claimed was worth 7.7 million, and sought compensation on the same or to be given the land to occupy. 26. At a further hearing date on the 18th of March 2025, PW 1 produced two valuation reports dated 19th August 2022 as evidence. On cross-examination, he acknowledged that the valuation did not indicate the value of his house, the trees therein or the land. He also admitted that the only evidence that he had was an acknowledgment of receipt of Kshs.540,000/= dated 29th June 2012, which had no conditions on occupation. 27. He stated that he did not wish to relocate to another location and he declined a survey on the land because they had told him that it would move him from where he had developed. He added that he bought the land from the 1st Defendant because he was the only son and direct beneficiary. 28. The Defense case was heard, and DW1, the 1st Defendant, adopted his witness statement dated October 12, 2023, and his list of documents as his evidence in chief. 29. He stated that he did not permit PW 1 to enter and develop the suit land, and told him that he had informed him that once he was done with the succession case, he would allow them to enter and develop the same since it was still registered in his father’s name. 30. **DW 1** stated thathe did not know that there was a problem with selling land to the 5 plaintiffs when the property was still in his father’s name. He agreed with all the plaintiffs to divide the half portion belonging to him; they were to get fewer acres than they bought, sign a new agreement, and the surveyor came to subdivide the land. The 2nd, 4th and 5th Plaintiffs consented to this new agreement, but the 1st and 3rd Plaintiffs did not. 31. The 1st Defendant highlighted that the 1st and 3rd Plaintiffs' portions of land are on his sister’s side, the 2nd Defendant’s portion of land, but that the 3rd Plaintiff has never entered or developed the land. That the Court awarded her sister the developed side of the land. 32. When questioned by the Court, the 2nd Defendant stated that he would repay half of the money to the Plaintiffs if they took half of the land. On cross-examination, DW 1 acknowledged that she did not involve her sister in the agreements to sell the land to the 5 Plaintiffs, but that she was present at the meeting with the Chief when they made a new agreement. 33. DW 2, the 2nd Defendant, gave her testimony, adopted her witness statement dated 23rd November 2023, and produced her bundle of documents and her evidence in chief. She denied ever selling her father’s land but stated that she knew the plaintiffs from their meeting at the chief. 34. DW 2 stated that the 1st and 4th Plaintiffs live on their father’s land, but the others are not on the land. She stated that her portion of the land is where the 1st Plaintiff purchased and settled. She also denied that the Plaintiffs gave her money to allow them to occupy her portion of the suit land. 35. The Trial Court rendered its decision on May 20, 2025, finding that the Plaintiffs purchased property from the 1st Defendant when he had no title to it, and therefore the agreements are a nullity. It declined to order specific performance as prayed for. 36. The trial court granted the 2nd Defendant’s prayer in her counter-claim to evict the 1st and 3rd Plaintiffs from her land and found that it could not order compensation of the 7.7 million in developments that arise from the nullified contracts as the Court termed the said developments as fruit of the poisonous tree and deemed it tainted and declined to grant the orders prayed for by the Plaintiff. However, the Court stated that the contract dated 29th March 2022 can still be enforced, and stated that if that is done, the Court will order the 1st Defendant to refund half of the purchase price that each of the Plaintiffs paid, but did not make any such order. **Appellant’s written submissions** 1. Counsel for the Appellant submitted that the trial court's decision allowed the Defendants to benefit from unjust enrichment and relied on the authorities in **Mutua v Maingi (2024) eKLR and Kioko v Musembi (2024) eKLR**. They highlighted that the Defendants stand to benefit from several developments they made on the suit land, including a modern bungalow-style family residence, several hundred mature coffee trees, fully operational dairy-farming infrastructure, cleared and cultivated agricultural land, access roads, and farm infrastructure, while the 1st Appellant stands to lose his investment. 2. The Appellant submits that this was a fundamental misapplication of equity because the Trial Magistrate acknowledged the improvements but failed to order restitution. 3. Secondly, Counsel for the Appellant relied on the doctrine of quantum meruit, which provides compensation for benefits conferred, and on the holding in the authority of **Kenya Ports Authority v Modern Holdings (EA)Ltd (2017) eKLR** and **Mwendandu v National Land Commission (2025) eKLR**. 4. The Appellants' argument is that they conferred substantial, measurable benefits on the suit land through their improvements, creating a basis for quantum meruit relief even if the primary contract fails. 5. The third point in the Appellants' submissions is that the Trial Court misapplied the Law of Succession Act. Although the court correctly identified that Sections 45 and 82(b)(ii) rendered the original agreements void, it failed to recognize that violations of succession law do not preclude equitable relief for innocent parties who have detrimentally relied on void transactions. 6. On this point, Counsel relied on the holdings in the cases of **Republic v AFA; Ex parte Keshio [2022] eKLR** and **Republic v Kenya Revenue Authority Ex parte Yaya Towers Limited [2008] eKLR**, which establish that judicial decisions must comply with standards of legality, rationality, and procedural propriety. 7. Fourth, Appellants' Counsel relied on Article 47 of the Constitution, which guarantees administrative action that is "expeditious, efficient, lawful, reasonable and procedurally fair." They submit that this fundamental right extends to judicial proceedings affecting property rights and personal security. However, the trial court failed to consider relevant factors, provided an inadequate opportunity to present an equitable case, and failed to consider alternative remedies. On this point, they relied on the case of **Communications Commission of Kenya & Others v Royal Media Services Ltd & Others [2014] eKLR**. 8. The Appellants concluded that they do not seek to circumvent succession law but rather invoke well-established equitable principles designed to prevent the harsh consequences of such legal formalism. They seek fair compensation for the value they have created and protection from unconscionable dispossession, and they prayed that the Court uphold both legal principle and substantial justice. **The 1st Respondent’s submissions** 1. Counsel for the 1st Respondent noted that in the said Record of Appeal, Counsel for the Appellants did not include any document filed by the Defendant in the lower court. They also failed to include other documents that were put in by their clients, the Plaintiffs, which they decided to put in the documents titled ‘documents omitted in the record of appeal’ bundle that is dated 22nd September 2025 that was allowed by the Court. 2. The 1st Respondent also prayed that the 2nd Memorandum of Appeal, dated 12th June 2025, filed with the Record of Appeal, be expunged from the court record because it was filed without leave of court and without payment of court fees. 3. On the merits of the appeal, it is submitted that, from the pleadings, the issues the Appellants are raising regarding constructive trust, legitimate expectations, unjust enrichment, or equitable relief were neither raised nor canvassed in the lower court. They are being raised for the first time in this appeal. Relying on the principle that parties are bound by their pleadings, Counsel cited the case of **Daniel Otieno Migore v South Nyanza Sugar Co Ltd [2018] KEHC 5465 (KLR).** 4. The 1st Respondent supports the finding that the Appellants were not entitled to compensation in the sum of Kshs 7,700,000/= because the Court rightly held that the claim for Kshs 7,700,000/= arose from contracts that this Court declared null and void. 5. Secondly, they submit that the Agreement dated 29. March 2022 remains binding on the parties because the 1st Appellant admitted signing it. They further highlight that Plaintiffs Nos. 2, 4, and 5 have adhered to the agreement and withdrew from the case in the lower court altogether after signing it. They submit that the Appellants should each accept the one-acre portion stated in the agreement. 6. On the grounds of appeal in the Memorandum of Appeal, the 1st Respondent submits that the agreements with the plaintiffs were a nullity and that the 1st Respondent’s admission of entering into those agreements does not change their status as void and illegal. The 1st Respondent further submits that the Court did not err in holding that compensation could not be ordered because the contract was illegal and void. They also submit that there was no prayer that the Court should enforce the said agreement of 29 March 2022, and thus the Court could not order the same. They prayed that the appeal be dismissed. **The 2nd Respondent’s written submissions** 1. Counsel for the 2nd Respondent equally submitted that the memorandum of appeal dated 12th June 2025, which the appellants have concentrated on in their submissions, is improper and should be struck out, as it was filed contrary to the proper amendment as provided by Order 42 Rule 3 of the Civil Procedure Rules. 2. The 2nd Respondent submits that the acknowledgment slip dated 29th June 2012 and the sale agreement dated 3rd October 2011, which were the main pillars of the appellants' suit in the trial court, have no legal effect. Both were entered into by the appellants and the 1st respondent after the death of the respondent’s father, who died in 1970, and the 1st respondent never had any interest in land parcel No. Githi/Muthambi/830 that could pass to the appellants. They relied on the case of **David Njogu Kibaka (deceased) H.C Kerugoya Case No. 48 of 2012**, as quoted with approval in **Re Estate of Eunice Wanjiru Karuri (deceased) (2018) eKLR**. 3. Further, Counsel submitted that, based on the Appellants' pleadings and the evidence tendered in court by the parties in the trial court, the Appellants failed to disclose any cause of action against the 2nd respondent. That the 2nd respondent was not a party, nor was she privy to the agreements entered into by the Appellants and the 1st respondent. 4. It is further submitted that the **Nyeri High Court, in Probate and Administration No. 5 of 2018**, delivered a judgment on July 15, 2021, directing that the estate of the respondent’s father be divided equally among the respondents. This decision was never appealed. Therefore, there is no merit to grounds 5 and 6 of the memorandum of appeal dated June 5, 2025, insofar as they speak of the 2nd respondent. 5. According to the 2nd Respondent, there are no merits in the appeal; no reasons whatsoever have been advanced warranting the setting aside of the judgment delivered on 20th May 2025, and urged the court to dismiss the appeal with costs to the 2nd Respondent **Analysis and determination** 1. The role of an appellate court was articulated in the case of **Mwangi v Wambugu [1984] KLR**, cited by the Appellants, in which the court observed that: ***“This is a first (and only) appeal so this court is obliged to reconsider the evidence, assess it and make appropriate conclusions about it, remembering we have not seen or heard the witnesses and making due allowance for this: Selle & another v Associated Motor Boat Company Ltd & others [1968] EA 123, 126 (CA-Z) and Williamson Diamonds Ltd v Brown [1970] EA 1, 12 16 (CA-T).”*** 1. This was a suit in which the 1st Defendant admitted in the Trial Court that he sold the suit property, the land known as LR Githi/Muthambi/830, to the 5 Plaintiffs when it was still registered in his late father’s name, Wanjau Kimori (Deceased). The 1st Defendant stated in Court that he did not know that it was wrong to sell the land of a deceased person before confirmation of grant. 2. After reviewing the case before the Trial Court and the Appellants’ Memorandum of Appeal dated June 5, 2025, I opine that the following issues arise for determination: 3. **Did the Trial Court err in holding that the Appellants were not entitled to an order of specific performance compelling the Defendants to transfer the shares sold to them?** 4. **Did the Trial Court err in declining to grant a declaration that the Defendants had acquired the suit parcel in trust for the Plaintiffs?** 5. **Did the Trial Court err in law by finding that it could not order compensation of Kshs.7,700,000/=, contrary to the doctrine against unjust enrichment?** 6. **Should the Trial Court's judgment be set aside?** 7. Before analyzing the issues at hand, I must note that the Appellants filed another Memorandum of Appeal dated 12th June 2025, which was included in their Record of Appeal without the leave of this Court. This is contrary to the provisions of Order 42 Rule 3 of the Civil Procedure Rules, which permits amendment of the Memorandum of Appeal only on the following terms: **“(*1) The appellant may amend his memorandum of appeal without leave at any time before the court gives directions under rule 13.*** ***(2) After the time limited by sub rule (1), the court may, on application, permit the appellant to amend his memorandum of appeal*.”** 1. The Appellants did not amend their Memorandum of Appeal, nor did they seek leave to file an amended version, as directions had already been given during the hearing of the appeal under Order 42 Rule 13, as provided above. The same is improperly on record and is hereby struck out and expunged from the record. **Did the Trial Court err in holding that the Appellants were not entitled to an order compelling the Defendants to transfer the shares sold to them?** 1. The Court held that the agreements between the Plaintiffs and the 1st Defendant were null and void and constituted intermeddling under section 45(1) of the Law of Succession Act Cap 160, which provides that: ***“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.”*** 1. Further, Section 82(b)(ii) of the same Act provides as follows: ***“No immovable property shall be sold before confirmation of Grant”*** 1. This is indeed the position in law that the property of a deceased person should not be interfered with before the grant is confirmed. Mativo J, in the case of **Njoki Gicheru Ndiuni v Dadson Githenji Wahome & 3 others [2016] eKLR**, held that: ***“The section is clear that the status quo as at the time of the deceased's death ought to be maintained. The law requires that the deceased's person’s estate ought to be preserved as at the time of death. In the matter of the estate of M’mugambi M’guoko alia Mugambi Gwoko alia Mugambi Guoko- Deceased: Makau J held that the Petitioners acts in the said case of attempting to sell or selling the deceased’s property to anyone was illegal, null and void for contravening section 45(1) cited above.”*** 1. In a similar case, **In** **re Estate of Eunice Wanjiru Karuri (Deceased) [2018] eKLR**, which the 2nd Respondent cited and relied upon, the Court held that: ***“The respondent claims he is a purchaser but as I have pointed, he did not purchase from the deceased but from proposed beneficiaries even before the grant was confirmed. He intermeddled with the estate and did not acquire any interest in the estate. He has deponed rightly that he is claiming a refund from the applicants. He cannot block the distribution of the estate when he has no enforceable interest in the estate.”*** 1. The Agreements entered into were indeed null and void, but that does not mean the Appellants have no legal recourse. **Did the Trial Court err in declining to grant a declaration that the Defendants have acquired the suit parcel in trust for the Plaintiffs?** 1. The Appellants sought a declaration that the Defendants had acquired the suit parcel in trust for them. In **Macharia Mwangi Maina & 87 Others v Davidson Mwangi Kagiri [2014] eKLR**, the Court of Appeal held that: ***“Pending the sale of all 240 plots by the respondent, the question that comes to mind is what was to be the legal status and relationship between the respondent and the appellants as purchasers who had paid the purchase price for individual plots. It is our considered view that the respondent created an implied or constructive trust in favour of those persons who had paid the purchase price pending the sale of all the 240 plots. In Mwangi & another –vs – Mwangi (1986) KLR 328, it was held that the rights of a person in possession or occupation of land are equitable rights which are binding on the land and the land is subject to those rights; the absence of any reference to the existence of a trust in the title documents does not affect the enforceability of the trust since the reference to a trustee under Section 126 (1) of the Registered Land Act is merely permissive and not mandatory. In Mutsonga – vs- Nyati vs Muthiora (1984) KLR 425 and Kanyi (1984) KLR 712, it was held that the equitable doctrines of implied, constructive and resulting trusts are applicable to registered land by virtue of Section 163 of the Registered Land Act which provides for the application of the common law of England as modified by equity.”*** 1. The evidence presented before the Trial Court demonstrated that it was the 1st Respondent who sold the respective portions of the suit parcel to the Appellants herein, rather than the 2nd Respondent. Furthermore, the portions belonging to the 1st and 3rd Plaintiffs, who are the Appellants herein, are located on the land of the 2nd Respondent, identified as LR Githi/Muthambi/2305, as confirmed by the grant. To claim that she holds the land in trust for the Appellants would constitute disinheritance. In my assessment, the coincidence of the Appellants’ portions being conveniently situated within the 2nd Respondent’s inherited land is not coincidental; the 1st Respondent played a role in this, even if solely through silence and a failure to inform the Succession Court about the occupation and developments of the Appellants on the said subdivision. 2. Equity will not permit the Appellants, who acquired the respective portions and have maintained long-standing possession despite being caught up in intermeddling, to be without redress; that hardship must be surmounted. The decision in **Willy Kimutai Kitilit v Michael Kibet [2018] KECA 573 (KLR)** is supportive. The Court of Appeal held that Article 10(2)(b) of the Constitution of Kenya elevates equity to a binding national value and principle. As a result, equitable doctrines such as constructive trust and proprietary estoppel are no longer merely subordinate common-law remedies. They possess constitutional weight and must be actively applied to ensure justice where and when necessary on a case-by-case basis. 3. The decision held that a constructive trust automatically arises when a land seller accepts the full purchase price and grants possession to the buyer, even if formal registration is never completed. Their agreement binds the legal owner's conscience, and they cannot abuse legal technicalities to reclaim the land or circumvent the outcome. 4. The central dispute in **Kitilit v Kibet** (supra)was that the land transaction lacked formal consent from the Land Control Board (LCB), which, strictly speaking, renders a transaction *"null and void"* under Section 6 of the Land Control Act. The Court of Appeal rightly held that statutes cannot be used as an engine of fraud. The equitable doctrine of constructive trust fills statutory gaps to prevent unconscionable behaviour. 5. A party who permits another to spend money under a valid agreement cannot later claim that the agreement is legally unenforceable. Ultimately, the **Kitilit Case** asserts that Kenyan trust law prioritises fairness, common intent, and substantive principles over rigid statutory formalities. This prioritisation prevents dishonest sellers from exploiting statutory loopholes to attain unjust enrichment at the expense of *bona fide* purchasers. 6. This is the same scenario we have here. The 1st Respondent, well knowing that he sold his inheritance to the Appellants and settled them, is now turning around to swindle them under the guise of intermeddling with the estate of the deceased. The Appellants were long shown their respective parcels and took possession. The 1st Appellant is settled and has developed his portion, and cannot possibly be compensated by monetary means. 7. To remedy this situation, it is my considered view that, in the pursuit of justice, the register be amended under Section 80 of the Land Registration Act Cap. 300 to reflect that Githi/Muthambi/2305, confirmed and registered to the 2nd Respondent, be registered in the name of the 1st Respondent, and that LR Githi/Muthambi/2304 be registered in the name of the 2nd Respondent, so that the 2nd Respondent may enjoy her inheritance free from interference, given that she was an innocent party, and to allow the Appellants continued occupation of their respective portions without disruption. 8. I reiterate that Section 80 of the said Act stipulates that: ***“Subject to subsection (2), the court may order the rectification of the register by directing that any registration be cancelled or amended if it is satisfied that any registration was obtained, made or omitted by fraud or mistake.*** ***(2) The register shall not be rectified to affect the title of a proprietor, unless the proprietor had knowledge of the omission, fraud or mistake in consequence of which the rectification is sought, or caused such omission, fraud or mistake or substantially contributed to it by any act, neglect or default.”*** 1. In this matter, the 1st Respondent deliberately failed to inform the Succession Court that he had already sold his portion, but settled the Appellants with his sister's portion 2. After the said rectification, the 1st Respondent's interest be held in trust for the Appellants, and that the Appellants' portions be carved out and the Land Registrar issue titles in their favour in accordance with the acreage they purchased. **Did the Trial Court err in law in finding that the court could not order compensation for Kshs.7,700,000/=, contrary to the doctrine against unjust enrichment?** 1. The 3rd issue for determination is whether the Appellants are entitled to compensation. This goes hand in hand with the issue of constructive trust that I have just discussed. The 1st Appellant gave evidence that he had made substantial improvements to the suit land. Yet, the Trial Court did not consider this and allowed the Respondents to enjoy the fruits of another man’s labour, calling it the fruit of a poisonous tree. In my view, this rendered the Appellants without a remedy and contrary to the spirit and letter of the Kenyan Constitution and the applicable law. The Court’s overriding objective, otherwise known as the Oxygen Principle, is set out in Sections 1A, 1B and 3A of the Civil Procedure Act, which provide that: **“*1A. (1)******The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.*** ***1B(1)(a) For the purpose of furthering the overriding objective specified in***[***section 1A***](https://new.kenyalaw.org/akn/ke/act/1924/3/eng%402022-12-31#part_I__sec_1A)***, the Court shall handle all matters presented before it for the purpose of attaining the following aims—*** ***(a)the just determination of the proceedings;*** ***3A.*** ***Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.”*** 1. Counsel for the Appellants relied on the holding in **Mutua (Suing as the Legal Representative and Administrator of the Estate of James Mutua Muange – Deceased) v Maingi & 2 others (Sued as the Legal Administrators of the Estate of Mwangangi Wambua Nguta) (Environment & Land Case 42 of 2020) [2024] KEMC 23 (KLR)**, where the Court held that: ***“Except where it is a gift, the doctrines of equity frown on unjust enrichment. In such cases, these doctrines impose an implied or constructive (involuntary) trust upon that person who has obtained property unwarrantedly or by wrongdoing or by voluntary conferment of benefit for total failure of consideration. In such circumstances, the doctrines of equity afford the innocent party aright known as restitution interest and prescribed therefor the remedy of restitution (also known as recuperation or restitutionary redress or restitutory right) as the appropriate chiefly guided by its sufficiency.”*** 1. As I have stated, a void contract does not mean that an injured party has no recourse in law. In **Ndungu & 2 others v Ruigu & another (Environment & Land Case 28 of 2019) [2022] KEELC 13270 (KLR)**, the Court noted that even though a contract was void, the 1st Defendant could not be allowed to retain both the land and the purchase money. The Court held that: ***“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 principles of natural justice and equity to make restitution. Lord Goff of Chievely and Professor Gareth Jones state in their monumental treatise, The Law of Restitution, 5th Edition (1998) at PP 11-12:*** ***“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.”*** ***To serve the equitable remedy of restitution and to avoid unjust enrichment, I find no difficulty in ordering a refund of the monies received by the 1st Defendant from the Plaintiffs.”*** 1. In conclusion, the Appellants are entitled to some form of restitution, even though they entered into a void and illegal contract with the 1st Respondent. The natural remedy flowing from the circumstances of this case is not to order a refund or compensation – to me, that option is not efficacious. It is to have the register rectified in the manner I have provided. Going into the rigmarole of refund and compensation will call for valuations of the suit property to ascertain the market value, etc. The option available is as I have set out in paragraphs 70 to 77 above. 2. As to the eviction of the Appellants – having rendered myself in the manner above; they will not. Therefore, the counter-claim in the Trial Court ought to have been dismissed. 3. Consequently, the appeal will be allowed, and the Trial Court's judgment is substituted with the following orders: 4. **The Land Register is hereby ordered to rectify the register under Section 80 of the Land Registration Act Cap. 300 to reflect that** **Githi/Muthambi/2305, confirmed and registered to the 2nd Respondent, be registered in the name of the 1st Respondent, and that LR Githi/Muthambi/2304 be registered in the name of the 2nd Respondent as her inheritance.** 5. **After the said rectification, the 1st Respondent's interest in Githi/Muthambi/2305 be held in trust for the Appellants, and subsequently the Appellants' portions be carved out, and the Land Registrar is directed to issue titles in their favour in accordance with the acreage they purchased.** 6. **Costs of this appeal and in the Lower Court to be borne by the 1st Respondent.** **Dated, signed, and delivered electronically in Nyeri on this 5th day of August, 2026.** **E. K. MAKORI** **JUDGE** **In the presence of:** **Ms. Koech for the Appellants** **Mr. Njuguna for the 1st Respondent** **Mr. Macharia for the 2nd Respondent** **Denis: Court Assistant**