https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5136

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MERU** **ELC APPEAL NUMBER E057 OF 2024** RUSETA KARINTHONI MWITHIGA [*suing as the representative of the estate of the late* *M’MWITHIGA M’RWARE alias M’MWITHIGA M’IRWAWE*…...………………………………………………...…APPELLANT VERSUS JAMES MURA M’TWERANDU…………………………..1ST RESPONDENT CRISPUS MWIRIGI [Suing through his next friend Emily Kinoti…………… 2ND RESPONDENT *[Being an appeal from the Judgement of Hon. J M Njoroge – Chief Magistrate delivered in Meru ELC No. 243 of 2018]* **JUDGMENT** 1. It is trite and established that where an illegality is brought to the attention of the court, whether *vide* the pleadings filed by the parties or vide evidence during the hearing of the matter, the court is enjoined to uphold the illegality and to remedy the situation, in accordance with law. Put differently, a court of law ought not to allow its machinery to be deployed to sanction or sanitize an illegality, whatsoever. 1. The foregoing position of the law has been reaffirmed in our jurisdiction *vide* several decisions. In the case **of Kenya Airways Limited v Flora [2013] KECA 545 (KLR),** the court of appeal reiterated the hackneyed position in the following manner: ***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. The position obtaining in respect of the instant matter, brings to light the application and relevance of the foregoing position. Can a court of law shut its eyes to an illegality? 2. Before venturing to interrogate the controversy surrounding the matter beforehand, it is imperative to put the facts into context. The facts in respect of the subject matter are thus: The Appellant herein [who was the plaintiff in Meru CMELC No. 243 of the 2018] is the widow and legal administratix of Mwithiga M’Rware [deceased]; the deceased was the registered owner of L R No. Abothuguchi/Ruiga /1943 [the suit property]; the suit property formed part of the estate of the deceased; the estate of the deceased has not been fully succeeded; the suit property was illegally and fraudulently sold to the 1st respondent; the vendor of the suit property was Priscillah Ntinyari Ndubi; the said vendor is a daughter of the Appellant; the vendor had not been issued with a grant of letters of administration; the sale transaction was undertaken without the requisite grant; the Appellant discovered the impugned transaction in the year 2018; the Appellant was aggrieved; the Appellant procured grant of letters of administration ad litem; and thereafter the Appellant filed the original suit. 3. The 1st respondent [who was the defendant in the lower court] duly entered appearance and filed a statement of defence. The statement of defence is dated the 07.08.2019. The 1st respondent posited thus: The suit property was sold unto him by Priscillah Ntinyari Ndubi; the said vendor is a daughter of the Appellant; the vendor represented that she had the capacity to sell; the family of the deceased were knowledgeable of and privy to the sale; the 1st respondent paid the consideration; the suit property was lawfully transferred to the 1st respondent; the 1st respondent is a bona fide purchaser for value; and the suit was intended to defraud the 1st respondent of the purchase price. 4. Other than the statement of defence, the respondent herein also filed his own suit as against the Priscillah Ntinyari Ndubi. The suit was Meru CMELC No. E090 of 2021. The respondent sought various reliefs including: Refund of Kshs. 600,000/= only which was paid to Priscillah Ntinyari Ndubi; liquidated damages in the sum of Kshs. 1,200,000/= only; general and exemplary damages; and an alternative prayer, namely; Priscillah Ntinyari Ndubi [the defendant in the said case] be ordered to regularize the process and have the title registered under the respondent’s name regularly registered. 5. The suit in the lower court, namely; Meru CMELC No. 243 of 2018 and Meru CMELC No. E091 of 2021, were consolidated. The two suit were heard and disposed of *vide* judgment delivered on the 24.07.2024. The learned trial magistrate [Hon. J M Njoroge- Chief Magistrate] entered judgment in favour of the 1st respondent. 6. It is apposite to reproduce the terms of the impugned Judgment. The terms are: 7. ***The defendant, Priscillah Ntinyari Ndubi shall refund the purchase price – Kshs. 600,000/= only.*** 8. ***The defendant Priscillah Ntinyari Ndubi to pay liquidated damages of Kshs. 1,200,000/= only.*** 9. ***In the alternative, the defendant Priscillah Ntinyari Ndubi is ordered to regularize the plaintiff’s [in the counter claim] registration and proprietorship of land parcel No. Abothuguchi/Ruiga/1943 within the next 90 days.*** 10. ***The defendant Priscillah Ntinyari Ndubi shall bear the costs of both suits and interests.*** 11. It is evident that the learned trial magistrate did not address and or determine the claims that had been raised by the Appellant. Notably, the Appellant had sought to impugn the transfer and registration of the suit property in favour of the 1st respondent on account of illegality. The Appellant had similarly, sought to have the suit property reverted to the estate of the deceased pending succession. 12. As a result of the failure by the learned trial magistrate to address and determine the complaints/claims by the Appellant, the Appellant felt aggrieved. The Appellant has now approached this court *vide* memorandum of appeal dated the 12.08.2024. The grounds underpinning the appeal are: 13. ***The learned trial magistrate erred in law and in fact in failing to declare that the transfer of L R No. Abothoguchi/Ruiga/1943 was fraudulent, illegal null and void, despite finding that the said transfer was tainted with illegality.*** 14. ***The learned trial magistrate erred in law and in fact by failing to offer any remedy to the Appellant despite finding that there was an illegality occasioned vis-à-vis the suit land in that it was alienated while the registered owner was already deceased and in the absence of a grant of letters of administration to the estate of the deceased.*** 15. ***The learned trial magistrate erred in law and in fact in attributing fault to be Appellant by unfairly incriminating the Appellant in the unlawful alienation of the suit land to the third parties.*** 16. ***The learned trial magistrate erred in law and in fact in ordering that the defendant in Meru ELC No. 091 of 201 do regularize registration and proprietorship of LRF No. Abothuguchi/Ruiga.19434 in the 1st Respondents name while it was clear that the said defendant lacked legal capacity to do so.*** 17. ***The learned trial magistrate found as a fact the alienation of the suit land from the name of the deceased to third parties was illegal yet proceeded to clothe the exercise with illegality by ordering the defendants in ELC No. 091 of 2021 to regularize the illegality.*** 18. ***The judgment of the learned trial magistrate is against the weight of evidence on record.*** 19. The appeal came up for directions on the 10.06.2026, whereupon learned counsel for the Appellant intimated to the court that the same had filed and served the record of appeal. In particular, learned counsel referenced the original record of appeal dated the 18.12.2025; and the supplementary record of appeal filed thereafter. The counsel for the Appellant posited that the appeal was ready for hearing. To this end, counsel sought directions pertaining to the disposal of the appeal. Moreover, learned counsel proposed to canvass the appeal by way of written submissions. 20. With the concurrence of learned counsel for the respondents, the court proceeded to and issued directions. The directions were: The appeal shall be canvassed vide written submissions; the Appellant shall file and serve written submissions within 14 days from the date of the directions; the respondents 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. 21. The Appellant filed written submissions dated the 23.06.2026. The Appellant has raised and canvassed six [6] key issues. The issues are: The learned trial magistrate erred in law in failing to appreciate that the transfer of the suit property was vitiated by illegalities; erred in law in failing to revoke/cancel the transfer in favour of the 1st respondent; erred in law in finding that the Appellant was privy to the fraud and illegality attendant to the transfer of the suit property; erred in law in failing to find that the 1st respondent did not acquire any valid title to and in respect of the suit property; and erred in law rendering a judgment which is perverse to the evidence on record. 22. Learned counsel for the Appellant has essentially, contended that the sale and eventual transfer of the suit property to the 1st respondent, was undertaken by a person who had not been issued with the requisite grant of letters of administration. In the absence of the grant of letters of administration, it has been submitted that the impugned transaction violated the provisions of **Sections 45 and 82 of the Law of Succession Act, Chapter 160 Laws of Kenya.** 23. Additionally, it has been submitted that the 1st respondent cannot contend that same is a bona fide purchaser for value, in respect of the suit property, yet the 1st respondent did not undertake the requisite due diligence before entering into the offensive sale agreement. It has been submitted that by the time the 1st respondent was entering into the impugned sale agreement, the suit property was still registered in the name of the deceased. For good measure, it has been pointed out that the impugned sale agreement was entered into on the 02.04.2018, yet the purported transfer in favor of the vendor is said to the taken place on the 06.04.2018. 24. Finally, it has been submitted that the transfer and registration of the suit property in favour of the 1st respondent, cannot be maintained and or regularized, insofar as same is coloured with illegalities. Furthermore, it has been submitted that the learned trial magistrate glossed over the illegalities, which had been pleaded and proved. 25. *In a nutshell*, learned counsel for the Appellant has submitted that the appeal is meritorious. The court has been invited to allow the appeal; set aside the impugned judgment; and substitute therefore, an order allowing the Appellant’s suit *vide* the amended Plaint dated the 17.07.2020. 26. The respondent filed written submissions dated the 15.07.2026. The respondents have canvassed three [3] key issues. The issues are: Whether the trial court erred in declining to cancel the transfer of the suit land to the 1st and 2nd respondents and in declining to order its reversion to the Appellant’s late husband’s estate; whether the trial court erred in finding that the Appellant was aware of and complicit in, the fraudulent alienation of the suit land; and whether the order made against Priscillah Ntinyari Ndubi to regularize the 1st respondent’s proprietorship, in the alternative was proper. 27. Regarding the first issue, learned counsel for the respondent has submitted that the respondents, were neither privy or parties to the fraud, if any, attendant to the transfer of the suit property in favour of Priscillah Ntinyari Ndubi. To this end, it has been submitted that the respondents’ title cannot therefore be revoked in the absence of proof of fraud. 1. Additionally, it has been submitted that the respondents tendered and adduced evidence, to demonstrate that same are bona fide purchasers for value without notice. In this regard, it has been submitted that the respondents have demonstrated that same ought to benefit from the impugned transaction. 1. With regard to the second issue, it has been submitted that the finding of the learned trial magistrate that the Appellant was party to the fraudulent transfer of the suit property in favour of Priscillah Ntinyari Ndubi, was well grounded. In particular, learned counsel has referenced the testimony of the Appellant before the Githongo Court, wherein Priscillah Ntinyari Ndubi, had been arrested and charged of a criminal offence. 2. The final issue that has been submitted upon relates to whether the judgment of the learned trial magistrate is perverse to the evidence on record. It has been submitted that the learned trial magistrate reviewed the totality of the evidence on record, including: the circumstances surrounding the transfer of the suit property; the Appellant’s involvement in the impugned transaction; the Appellant’s participation; and the Appellant own admissions; and thereafter, returned a well-reasoned judgment. 3. According to learned counsel for the respondents, the learned trial magistrate correctly evaluated the evidence on record and correctly, applied the law, in arriving at the impugned judgment. To this end, the court has been implored to find and hold that the appeal is bereft of merits and courts dismissal. 4. Instructively, learned counsel for the respondents has implored the court to dismiss the appeal; affirm the judgment of the learned trial magistrate; and to award costs of the appeal to the respondents. 5. Having reviewed the record of appeal; the grounds of the appeal; the impugned judgment; and upon consideration of the written submissions filed by/on behalf of the respective parties, three [3] key issues emerge for determination. The issues are: Whether the Appellant established /proved her claim in the lower court or otherwise; and whether the learned trial magistrate correctly apprehended and correctly applied the law in his determination of the dispute before him; and what reliefs ought to be given. 6. 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 and conclusion arrived at by the trial magistrate accord with the evidence on record and the legal principles. 7. 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 findings of the Trial Court. 8. 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. It is a jurisdiction that cannot be exercised for the mere asking. In addition, it cannot be invoked at will. **Section 78 of the Civil Procedure Act, Chapter 21 Laws of Kenya,** regulates its exercise. 9. 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. 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 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 Appealare 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 Appellant established /proved her claim in the lower court or otherwise. 2. To begin with, the Appellant herein contended that the suit property belonged to and was registered in the name of Mwithiga M’Rware, [now deceased]. In addition, the Appellant posited that the said Mwithiga M’Rware died on the 09.06.2004. Besides, evidence was tendered before the lower court that the estate of Mwithiga M’Rware [deceased] had not been succeeded, save for the grant of letters of administration ad litem, which was issued for the purposes of filing the suit in the lower court. 1. It was also the Appellant’s case that the suit property was transferred to and registered in name of the 1st respondent under the pretext that the estate of Mwithiga M’Rware [deceased] had been succeeded vide Meru HCC Succession Number 604 of 2015, wherein it is purported that grant of letters of administration had been issued to and in favour of Priscillah Ntinyari Ndubi. 2. Be that as it may, the Appellant posited that upon obtaining a copy of the green card from the land registry, same [Appellant] instructed her counsel to interrogate whether or not, any succession proceedings had been taken in respect of the estate of Mwithiga M’Rware [deceased]. Moreover, the Appellant also posited that same instructed counsel to discern whether the succession cause vide Meru HCC Succession Cause number 604 of 2015, related to and concerned the estate of Mwithiga M’Rware [deceased]. 3. It was the testimony of the Appellant that upon investigations, it transpired that there was no succession cause, namely; Meru HCC succession No. 604 of 2015. On the contrary, the Appellant testified that there existed two succession causes, namely; Meru HCC Succession Cause No. 604A in respect of the estate of M’Mauta M’Thimuti alias M’Mauta M’Thimuti; and succession Cause no. 604B of 2015 , in respect of The estate of M’Kwaria M’Kairu alias Kwaria M’Kairu – deceased. 4. Additionally, evidence was tendered that during the prosecution of Priscillah Ntinyari vide Githongo Criminal case number 265 of 2019, it transpired that Meru HCC succession Cause No. 604 of 2015, which was relied upon to effect the impugned transfer, was non-existent. [See page 123 and 124 of the record of appeal]. 5. The bottom line is that the suit property was transferred to and registered in the name of Priscillah Ntinyari Ndubi on the 06.04.2018; and thereafter transferred to and registered in the name of the 1st respondent, on even date, albeit without the requisite grant of letter of administration. Quite clearly, the transactions impacting on the suit property were under taken contrary to and in violation of the provisions of **Sections 45 And 82 of the Law of Succession Act, Chapter 160, Laws Of Kenya.** 6. The learned trial magistrate duly appreciated that the impugned transfer was undertaken without the requisite grant; and that the purported succession cause, namely; Meru HCC Succession Number 604 of 2015 was non-existent. However, the learned trial magistrate failed to deploy the said findings, towards determining the Appellant’s suit. 7. Without belaboring the point, it is my finding and holding that the Appellant herein duly established the following: 8. *The estate of Mwithiga M’Rware [deceased] had not been succeeded.* 9. *The purported succession cause number 604 of 2015, was non-existent.* 10. *Priscillah Ntinyari Ndubi was not the appointed administratix of the estate of the deceased.* 11. *The transfer of the suit property to and in favour of Priscillah Ntinyari Ndubi was illegal.* 12. *The transaction between Priscillah Ntinyari Ndubi and the 1st respondent was illegal.* 13. *The transaction impacting on the suit property amounted to intermeddling with the estate of the deceased*. 14. *In a nutshell*, I hasten to state that the Appellant duly proved her case to the requisite standard. 1. Next is the issue as to whether the learned trial magistrate misapprehended and misapplied the law as pertains to the transactions impacting upon the estate of a deceased person, prior to issuance of grant of letters of administration. It is common ground that the learned trial magistrate appreciated that no grant of letters of administration had been issued. Nevertheless, the learned trial magistrate proceeded to and sanitized the impugned transfer. 2. Additionally, the learned trial magistrate appreciated that the 1st respondent had indeed conceded the existence of fraud, but failed to deploy same, in an endeavor to impeach the transfer. 3. At page 201 of the record of appeal, it is indicated thus: “***The defendant has on his part admitted that Priscillah did not confer a clean title and this prompted him to file a complaint with the DCI.”*** 1. My understanding of the quote is to the effect that the current 1st respondent, was conceding that same did not accrue any valid title to and in respect of the suit property. This piece of evidence, was sufficient to trigger revocation of the impugned transfer. 2. It suffices to state that where a transfer of land, like the one beforehand, is vitiated by illegality; un-procedurality, or corrupt practice, then the transfer cannot be vindicated by a court of law. This is the import of **Section 26 [1] [b] of the Land Registration Act, 2012[2016].** 3. The aforesaid section stipulates thus: **. Certificate of title to be held as conclusive evidence of proprietorship** (**1)The certificate of title issued by the Registrar upon registration, or to a purchaser of land upon a transfer or transmission by the proprietor shall be taken by all courts as prima facie evidence that the person named as proprietor of the land is the absolute and indefeasible owner, subject to the encumbrances, easements, restrictions and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except—** **(a)on the ground of fraud or misrepresentation to which the person is proved to be a party; or** **(b)where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.** **(2)A certified copy of any registered instrument, signed by the Registrar and sealed with the Seal of the Registrar, shall be received in evidence in the same manner as the original.** 1. In addition, it is worthy to take cognizance of the holding in the case of **Wambui v Mwangi & 3 others [2021] KECA 144 (KLR),** where the Court of Appeal underscored the obtaining jurisprudence pertaining to illegally acquired titles. 2. The court stated thus: ***The jurisprudence relied upon by the Appellant and which we find prudent not to replicate are as already highlighted above. We have given due consideration to them in light of the record as assessed herein by us. Our take on the same is that the jurisprudential thread running through all of them is that no court of law should sanction and pass as valid any title to property founded on: fraud; deceitfulness; a contrived decree; illegality; nullity; irregularity, un-procedurality or otherwise a product of a corrupt scheme.*** 1. Quite clearly, the learned trial magistrate misapprehended and misapplied the obtaining legal principles to the subject matter. Moreover, it is evident that the learned trial magistrate, paid scant tribute to the import and tenor of **Section 45 of the Law of Succession Act, Chapter 160, Laws of Kenya.** 2. I now wish to turn to the last issue. The issue touches on the reliefs [if any] that ought to be granted. I have already pointed out that the Appellant duly proved and established her claim to the requisite standard. In this regard, there is no gainsaying that the Appellant was entitled to the reliefs sought vide the amended plaint. In particular the Appellant was entitled to the revocation of the title of the suit property and restoration of same to the name of the deceased. 3. It is also instructive to note that the Appellant had also sought a declaration to the effect that the transfer of the suit property to the respondent was illegal. I have found as much. I am in agreement with the Appellant. In any event, the provisions of **Section 26 [1] [b] of the Land Registration Act, [2012],** are apt. 4. The Appellant had also sought an order of permanent injunction, to restrain the respondent from interfering with the suit property. Having found and held that the suit property, forms part of the estate of the deceased, and taking into account that the Appellant is the administrator of the estate, I find and hold that a basis has been established. The prayer for permanent injunction is merited. 5. Finally, I wish to say something about the alternative order which was granted by the learned trial magistrate. It suffices to underscore that Priscillah Ntinyari Ndubi, is not the legal administratix of the estate of the deceased. To this end, the said Priscillah cannot undertake any steps or measures to regularize the illegality. 6. Moreover, it is common ground that an illegality, like the one beforehand cannot be regularized. I am afraid that the alternative order that was granted in favour of the respondents, was not only misconceived, but amounted to sanctioning an illegality. Simply put, the alternative order, is certainly antithetical to the rule of law. 7. In the case of **Republic v Chengo & 2 others [2017] KESC 15 (KLR)**, the Supreme Court underscored the legal implication[s] of an act which is illegal and void. The apex court stated thus: **“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.”** **Conclusion:** 1. The Appellant herein approached this court seeking to impugn the judgment of the trial court. The Appellant raised a number of issues, including the position that the transaction affecting the suit property was illegal and void. The applicant thereafter demonstrated the aspects showing/confirming the illegality. 2. In addition, the Appellant also challenged the aspect of the judgment, which directed Priscillah Ntinyari Ndubi [not a party to this appeal] to regularize the illegal transfer of the suit property in favour of the respondents. Quite clearly, such [sic] regularization, if at all, would impact on the estate of the deceased. 3. In any event, it bears repeating that Priscillah Ntinyari Ndubi, has no capacity to undertake any action, as pertains to the estate of the deceased. [See the holding of the court of appeal in **Rajesh Pranjivan Chudasama v Sailesh Pranjivan Chudasama [2014] KECA 250 (KLR)].** 4. I have said enough to demonstrate that the appeal is meritorious. The learned trial magistrate, clearly misapprehended the relevant principles and misconstrued the evidence on record. The conclusions that were arrived at by the learned trial magistrate were perverse to the evidence on record. 5. The Appellant has met the threshold to warrant setting aside of the aspect of the judgment relating to Meru CMELC No. 243 of 2018. 6. For good measure, the aspects of the judgment touching on refund of the sum of Kshs. 600,000/= only; and Kshs. 1,200,000/= only, which relate to the Priscillah Ntinyari Ndubi, remain in situ. This judgment does not affect the said aspects. 7. For the avoidance of doubt, no appeal was filed to challenge same. **Final Orders:** 1. Flowing from the analysis in the body of the Judgment, the final orders that commend themselves to the court are: 2. ***The Appeal be and is hereby Allowed.*** 3. ***The Judgment of the learned trial magistrate dated the 24.07.2024, and more particularly, touching on Meru CMELC No. 243 of the 2018, be and is hereby set aside.*** 1. ***In lieu thereof, there be and is hereby entered Judgment in favour of the Appellant in terms of the amended Plaint dated the 17.07.2020.*** 2. ***For the avoidance of doubt, Judgment be and is hereby entered in favour of the Appellant in the following terms:*** 3. ***A declaration be and is hereby issued to the effect that the transfer of LR No. Abothuguchi/Ruiga/1943 belongs to and constitutes the estate of Mwithiga M’Rware alias Mwithiga M’Irware [deceased].*** 4. ***The transfer and registration of the suit property in the name of the Respondents be and is hereby cancelled.*** 5. ***The Register of the suit property shall be rectified to facilitate the removal of entry numbers 3, 4 and 5 thereof; and thereafter to restore the suit property to the name of the deceased.*** 6. ***There be and is hereby granted an order of permanent injunction restraining the respondents either by themselves, servants, agents and or anyone claiming under their instructions, from entering upon, remaining on or interfering with the Appellant’s use of the suit property.*** 7. ***Costs of the appeal be and are hereby awarded to the Appellant.*** 8. ***The Appellant shall equally have the costs of the suit in the lower court [CMELC No. 243 of 2018].*** 9. ***The costs in terms of clause [v] and [vi] shall be agreed upon and in default be taxed in the conventional manner.*** 10. ***For the avoidance of doubt, the aspects of the Judgment concerning refund of Kshs. 600,000/= only; and payment of Kshs. 1,200,000/=only, which were to be borne by Priscillah Ntinyari Ndubi shall remain in force.*** 11. It is so ordered **DATED, SIGNED AND DELIVERED AT MERU ON 30TH DAY OF JULY, 2026.** **OGUTTU MBOYA; FCIArb; CPM [MTI-EA].** **JUDGE.** In the presence of: Court Assistant: Zakayo Mr. Basillio Gitonga for the Appellant Mr. Kimathi for the Respondents.