https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5303

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA AT NYERI** **ELCA NO. E036 OF 2024** **STEPHEN KAMOTHO NDUNG'U (Suing as the Administrator & Legal Representative of the Estate of Michael Ndungiu Wambugu) ……………………………………………………...APPELLANT** **VERSUS** **JAMES GACHANGO NGARI ………………………1ST RESPONDENT** **JANE MUMBI KAGUMBA (sued as the Legal Representative of the Estate of Charles Kagumba Ngari) ... …………….. 2ND RESPONDENT** **JUDGMENT** 1. The Appellant sued the Respondents by the amended Plaint dated 25th March, 2024, seeking an order for specific performance, among other orders appearing on page 7 of the record of appeal. 2. The Respondents did not participate in the proceedings before the Trial Court despite being duly served with a summons; consequently, the matter proceeded via formal proof. After the trial, the Court rendered judgment on 16 October 2024, dismissing the suit on the ground that the Respondents lacked the legal capacity to enter into the sale agreements. 3. The Appellant, dissatisfied with the judgment and decree issued by the Trial Court on 18 September 2024 in **Nyeri Chief Magistrate's CMELC E062 of 2023**, filed an appeal challenging the entire judgment, as detailed in the Memorandum of Appeal dated 16 October 2024, on the grounds specified on pages 2 and 3 of the record of appeal: 4. **The learned trial magistrate erred and misdirected herself in law by selectively interpreting the law, thereby making an erroneous finding that the agreements for sale were void ab initio, notwithstanding that the Respondents had received the purchase price from the Appellant and had placed the Appellant in possession of the suit property, so that the Respondents had become trustees holding the suit property in favour of the Appellant, thereby occasioning a miscarriage of justice.** 5. **The learned trial magistrate erred in law and fact by applying the wrong principles of law, notwithstanding that the Appellant, having been in possession of the suit property, acquired an equitable beneficial interest in it, thereby occasioning a miscarriage of justice.** 6. **The learned trial magistrate erred in law and fact by considering extraneous and irrelevant considerations, thereby arriving at an erroneous finding in the judgment and occasioning a miscarriage of justice.** 7. **The learned trial magistrate failed to address her mind to the pleadings on record, the documentary evidence adduced by the parties, the Appellant’s submissions and the Law, thereby occasioning a miscarriage of justice.** 8. The Appellant respectfully requests: 9. **The Appeal be allowed in its entirety.** 10. **The judgment and decree of the Hon. Mary Gituma, Senior Resident Magistrate, delivered on 18th September, 2024, in Nyeri Chief Magistrate's CMELC E062 of 2023, be set aside and/or varied and replaced with an order allowing the said suit as prayed.** 11. **The Court grants any other or further relief as it may deem necessary.** 12. **Costs of this Appeal be provided for.** 13. The appeal was canvassed through written submissions. I acknowledge receipt of submissions from counsel for the Appellant, which, among others, referenced judicial authorities and discussed the criteria for establishing a trust, whether constructive, customary, or implied. I appreciate the submissions, as they significantly assisted the Court in reaching its decision. 14. From the materials emanating from the record of appeal, the predominant issues for the court's determination are whether the Trial Court erred in law and fact in dismissing the Appellants' case without offering any alternative remedy. The court must also address who should bear the costs. 15. The function of a first appellate court in Kenya is to perform a comprehensive, meticulous re-assessment and re-analysis of all evidence presented in the trial court, encompassing both legal and factual issues, and to establish its own independent conclusions. 16. According to established Kenyan jurisprudence, including landmark cases such as **Selle and Another v Associated Motor Boat Company Ltd and Others [1968] EA 123** and **Okeno v Republic [1972] EA 32**, the specific responsibilities of a first appellate court include a comprehensive review of the entire trial record through a fresh and thorough examination. 17. This process involves not merely identifying errors but also re-evaluating conflicting evidence to arrive at independent findings. 18. Unlike second appellate courts, which are confined strictly to legal issues, a first appellate court may scrutinise both factual determinations and the application of the law. 19. While the court must form its own conclusions, it must recognise that it did not observe or hear the witnesses directly. Nonetheless, it retains the discretion to reject the trial court's findings if they are inconsistent with the overall weight of the evidence. 20. The court cannot adopt a passive approach by merely verifying the existence of evidence supporting the lower court’s decisions; rather, it must explicitly justify why it should uphold or overturn the findings. 21. In this matter, the evidence before the trial court was that the Plaintiff testified in the lower court that the Defendants are registered, equitable, and beneficial owners of a portion, measured at 4.5 acres, comprised in title no. Tetu/Kihuyo/220, measuring 5.18 Ha., registered in the names of Johnson Wachira Ngari, Justus Ngari, Francis Kagumba Ngari, James Gachango Ngari, Stephen Karimi Ngari, and James Mumbi Kagumba 22. On 29th April 2013, Michael Ndung'u Wambugu entered into an agreement with the Defendants for the sale of 4.5 acres to be excised from the suit land, for a consideration of Kshs. 3,150,000/-. The sale was subject to the completion of succession proceedings in **Succession Cause No. 47 of 2002 - Estate of Bernard Ngari Ndiuni.** 23. The Plaintiff averred that Michael Ndung'u Wambugu paid a total of Kshs. 2,440,000/= on various dates between 2013 and 2018 to the Defendants and was placed in actual occupation of the 4.5 acres he had begun to develop—the balance of Kshs. 700,000/= was to be paid upon successful completion of the succession proceedings and the registration of 4.5 acres in the names of the Defendants. However, on 25th October 2022, the suit land was registered in the names of Johnson Wachira Ngari, Justus Ngari, Francis Kagumba Ngari, James Gachango Ngari, Stephen Karimi Ngari and James Mumbi Kagumba upon the determination of the succession cause. 24. The Plaintiff asserted that the Defendants have been reluctant to apply for and obtain the necessary consent to transfer the suit land in favour of the Plaintiff. Accordingly, the Plaintiff contended that the Defendants breached the agreement dated 29th April 2014. The particulars of the breach include failing to obtain the necessary approvals to transfer the suit land, failing to complete the sale agreement within the stipulated time, withholding title documents to obstruct the transfer, and intending to repudiate the sale agreement without lawful cause. 25. After analysing the evidence before her and the applicable law, the learned trial magistrate, at pages 17 to 20 of the judgment, observed as follows: ***“From the above holdings, Sections 79, 82, and 83 of the Law of Succession Act, read together, provide that any transaction entered into in relation to assets of the estate of a deceased who died intestate is void if a legal representative to the estate has not been appointed. Additionally, once a legal representative is appointed, he or she is allowed to enter into contracts over estate assets, but his or her powers do not extend to the sale of immovable property. Put into context, the Defendants herein, could not sell any part of the suit land after the deceased-BERNARD NGARI NDUINI had died as they were not legal representatives to the estate of BERNARD NGARI NDUINI. However, even if the Defendants were appointed as legal representatives to the estate and they were vested with the powers to enter into contracts over the estate assets, Section 82(b)(ii) of the Law of Succession Act prohibits them from selling the immovable assets of the estate. For all intents and purposes, the Defendants were intermeddling with the estate. It follows that the agreement dated 29th April 2013 is null and void and so is the agreement dated 15th September 2018 which purported to add onto the initial agreement.*** ***18. 1 note that the agreement dated 29th April 2013 provides that it is conditional to the successful completion of Succession Cause No. 47 of 2002-Estate of BERNARD NGARI NDUINI. In my view, this condition could not legitimize the agreement as in the first place the Defendants did not have capacity to enter into the agreement.*** ***19. 1 therefore find that the agreement dated 29 April 2013 and the subsequent agreement dated 15th September 2018 are invalid as the Defendants could not enter into the agreements.*** ***20. The second issue that was raised by the Plaintiff is whether a constructive trust was created in favor of the Defendants over the suit land. I do agree with the Plaintiff that a constructive trust is based on common intention/common understanding and this can be implied into a land agreement. However, a constructive trust cannot be created where the agreement is void ab initio. For this reason, I will not delve further into this issue.*** ***21. The third issue is whether the prayers sought should be granted. Having found that the sale agreements dated 29 April 2013 and the subsequent agreement dated 15th September 2018 are null and void, the prayers sought by the Plaintiff cannot be granted. Be that as it may, I wish to point out that the Plaintiff has not exhausted all the remedies under the law. He can sue the Defendants to recover the amount paid towards the purchase of the 4.5 acres to be excised from the suit land. “*** 1. Counsel for the Appellant submits that the trial magistrate erred in finding that the Respondents lacked capacity to sell, even though the Respondents had received the purchase price and had put the Appellant in possession of the suit land. Since the proceedings before the trial magistrate were not for the revocation of a grant or a related dispute under the law of succession, it is opined that the trial court ought to have considered the other facts of the case and invoked the equitable remedies the Appellant sought. 2. The Appellant submits that by the Respondents' conduct in receiving a substantial amount of the purchase price and putting the Appellant in possession of a portion of the land, a constructive trust was created, and thus the Appellant has an overriding interest in the suit land. 3. Whether the magistrate erred in concluding that there was intermeddling and that the Respondents had no capacity after the demise of their patriarch, I do not think so. The Court held that the agreements between the deceased and the successors, entered into before the appointment of legal representatives, 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. The High Court, 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**, the High 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 Appellant has no legal recourse. 2. The Appellant submitted that equity should have been invoked to aid the Appellant – that is true – but is it achievable in this case? 3. Equity will not permit a person who acquired land by sale, has been put in possession, and has maintained long-standing possession despite being caught up in intermeddling, to be without redress. Equity usually overcomes that hardship, as correctly submitted by the Appellant, and the decision in **Willy Kimutai Kitilit v Michael Kibet [2018] KECA 573 (KLR)** supports this position. 4. 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 carry constitutional weight and must be applied actively to ensure justice where and when necessary, on a case-by-case basis. 5. 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. 6. 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. 7. 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. 8. 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** holds that Kenyan trust law prioritizes fairness, common intent, and substantive principles over rigid statutory formalities. This prioritization prevents dishonest sellers from exploiting statutory loopholes to achieve unjust enrichment at the expense of *bona fide* purchasers. 9. The scenario presented here is distinct. On 29th April 2013, Michael Ndungu Wambugu (the purchaser) entered into a contractual agreement with James Gachango Ngari (the 1st defendant) and Charles Kagumba Ngari (now deceased, represented by his estate as the 2nd Defendant) concerning the sale of 4.5 acres of the subject land. At the time of this transaction, the land was registered in the name of Bernard Ngari Ndiuni, the father of the sellers. The agreement explicitly stipulated that the sale was contingent upon the completion of succession proceedings, specifically **Succession Cause No. 47 of 2020**, pertaining to the estate of Bernard Ngari Ndiuni. 10. Essentially, the sellers believed they were selling what they assumed to be their inheritance, part of their father's estate. Subsequently, on 15th September 2018, they executed an additional agreement concerning the same piece of land, purportedly transferring ownership of the same 4.5 acres. In this later agreement, the purchaser was Patricia Muthoni Ndung'u, the wife of the late Michael Ndung'u Wambugu. The sellers in this agreement were the 1st defendant and the 2nd Defendant, who was acting as the representative of her deceased husband, Charles Kagumba Ngari. The significance of this latter agreement lies in acknowledging that the 2nd defendant had received a total sum of Kshs. 215,000/- from Patricia Muthoni Ndung'u on various dates spanning from 2013 to 2018. 11. Following the conclusion of the Succession Cause, the land was subdivided into several portions, with each beneficiary receiving their respective share of the inheritance. The beneficiaries listed in the search certificate are Johnson Wachira Ngari, Justus Ngari, Francis Kagumba Ngari, James Gachango Ngari, Stephen Karimi Ngari, and James Mumbi Kagumba. 12. As demonstrated, not all beneficiaries have surrendered their inheritance, so they are not part of this dispute. Imposing a constructive trust on them would unfairly disinherit those beneficiaries who have not sold their shares. Additionally, neither the trial nor the appellate court can determine the exact location and portion of the estate sold by the 1st and 2nd Respondents, nor can they confirm if these sales overlap with those to be held by the other dependents. 13. The trial court correctly based its decision on the facts, the pleadings and the evidence, and found that the orders sought were never substantiated and that the Appellant had recourse to sue for a refund. 14. I sought to know from counsel for the Appellant whether the Appellant sought a refund in the lower court – he did not. 15. The sole effective remedy available to the Appellant, given that constructive trust and specific performance are not applicable in this context, is to order, under any other form of relief, that I substitute the judgments of the lower court with orders that: 16. **The Appellant’s claim is granted to the extent of recovering the purchase price paid to the 1st and 2nd Defendants from the date of payment, with interest accruing until full settlement.** 17. **Since the matter was undefended in this court and in the lower court, there will be no order as to costs.** **Dated, signed, and delivered virtually at Nyeri on this 5th day of August 2026.** **E. K. MAKORI** **JUDGE** **In the Presence of:** **Ms. Njeri for the Appellant** **Denis - Court Assistant** **In the Absence of:** **The Respondents (in person)**