Rugut & 2 others v Rono (Environment and Land Appeal E023 of 2024) [2026] KEELC 3442 (KLR) (4 June 2026) (Judgment)

Rugut & 2 others v Rono (Environment and Land Appeal E023 of 2024) [2026] KEELC 3442 (KLR) (4 June 2026) (Judgment) Neutral citation: [2026] KEELC 3442 (KLR) Republic of Kenya In the Environment and Land Court at Kericho Environment and Land Appeal E023 of 2024 LA Omollo, J June 4, 2026 Between Samwel Sowe Rugut 1st Appellant Grace Cheboo Rugut 2nd Appellant Mercy Chemutai Chebures 3rd Appellant and Elizabeth Chepkemoi Rono Respondent (Being an appeal arising from the judgement of Hon. Japhet Bii delivered on 19th December, 2024 in Kericho CM ELC Case No. E054 of 2021) Judgment Introduction. 1.By a Memorandum of Appeal dated 19th December, 2024, the Appellants challenge the decision of Hon. Japhet Bii in Kericho CM ELC Case No. E054 of 2021. Factual Background. 2.In the subordinate Court, the Respondent filed a suit vide the Plaint dated 8th September, 2021. The suit was filed against the Appellants. The Respondent sought the following prayers in the Plaint;a.An order of specific performance by the 1st Defendant in particular namely demarcate and transfer a portion measuring 0.4375 of an acre out of Kericho/Kipchimchim/6244 to the Plaintiff. (sic)b.Mesne profits from 1st September 2016 for 0.1 acres and general damages for breach of contract.c.Costs of this suit.d.Any other relief the Court deems fit to grant. 3.The Appellants filed a Statement of Defence and Counterclaim wherein they sought the following prayers;a.A declaration that the 1st Defendants (now Plaintiff) is the absolute, sole and legal proprietor of the parcel of land known as Kericho/Kipchimchim/6244.b.A permanent injunction be issued restraining the Plaintiff (now defendant), their workers, servants and or agents from entering on and/or from erecting or causing to be erected thereon any structures, or from in any way interfering with the plaintiff's use and enjoyment of the plaintiffs said property.c.An order of eviction of the Plaintiff (now defendant) from the parcel of land known as Kericho/Kipchimchim/6244.d.Cost of the suit.e.Any other relief the Court deems fit to grant. 4.The Learned Trial Magistrate delivered judgement on 19th December, 2024 wherein he dismissed the Counterclaim and issued the following orders;a.An order for specific performance by the 1st Defendant in particular to demarcate and transfer a portion measuring 0.4375 of an acre out of Kericho/Kipchimchim/6244 to the Plaintiff.b.Costs of this suit. 5.The Appellants being aggrieved by the said judgement approached this Court by way of appeal. 6.The appeal was admitted for hearing on 23rd September, 2025 and the Court issued directions that it be heard by way of written submissions. 7.The appeal was mentioned severally to confirm filing of submissions before it was reserved for judgement on 10th February, 2026. The Appeal. 8.The grounds of appeal are as follows; 1.The learned magistrate erred in law and fact by ordering specific performance against the 1st Appellant despite there being no valid agreement between the Respondent and the 1st Appellant. The 1st Appellant was not a party to any agreement with the Respondent, nor did he witness or consent to the purported sale. 2.The trial Court failed to appreciate that Charles Kipngeno Kitur, the alleged vendor, was not a beneficiary of the estate of the late Kibet Arap Wendot at the time of the purported transaction. The 1st Appellant, who had not yet obtained a title to the property, could not pass any rights to Charles, rendering the agreement invalid. 3.The learned magistrate erred in law by failing to consider that Charles Kipngeno Kitur had no legal capacity to sell the suit property as he was neither the registered owner nor an authorized administrator of the estate of the late Kibet Arap Wendot. Consequently, any agreement purportedly entered into by him with the Respondent is null and void ab initio. 4.The trial Court erred in finding the 1st Appellant liable for specific performance despite evidence that the 1st Appellant neither participated in, nor witnessed, any of the purported sale agreements. The agreements produced in Court were not signed or attested to by the 1st Appellant, who is the rightful owner of the suit property. 5.The learned magistrate failed to consider that no letters of administration had been taken out for the estate of Charles Kipngeno Kitur. As a result, no legal representative existed to be sued on behalf of Charles, making the Respondent's suit legally defective. 6.The Court erred in failing to consider that the suit property was part of the estate of the late Kibet Arap Wendot and had not been transferred to the 1st Appellant at the time of the alleged transaction. This omission rendered the purported agreement incapable of being enforced under the law. 7.The trial Court erred in dismissing the Appellants’ counterclaim for a permanent injunction and eviction, despite evidence that the Respondent's occupation of the suit property by virtue of a Court order was unauthorized and unlawful. 8.The Court erred by failing to appreciate that any claims regarding the estate of the late Kibet Arap Wendot or the late Charles Kipngeno Kitur could only be dealt with in accordance with the provisions of the Law of Succession Act, and not through the purported agreements. 9.The learned magistrate erred in awarding costs to the Respondent despite the evident legal deficiencies in the Respondent’s case, which sought to enforce an invalid and unenforceable agreement. 9.The Appellants pray for orders that;a.That the judgment and decree of the Hon. Japhet Bii delivered on 19th day of December 2024 in Kericho CM ELC Case No. E054 of 2021 be set aside.b.That the Respondent's suit in Kericho CM ELC Case No. E054 of 2021 be dismissed with costs.c.That the Appellants’ counterclaim in Kericho CM ELC Case No. E054 of 2021 be allowed.d.Costs of this appeal be awarded to the Appellants. Issues for Determination 10.The Appellants filed their submissions on 30th October, 2025 while the Respondent filed her submissions on 9th February, 2026. The Appellants Submissions. 11.The Appellants set out the following issues in their submissions;a.Whether the learned Principal Magistrate erred in law and in fact by decreeing specific performance against the 1st Appellant in the absence of a valid, binding, and enforceable contract between the Respondent and the 1st Appellant.b.Whether the alleged agreement relied upon by the Respondent satisfied the mandatory formal requirements of Section 3(3) of the Law of Contract Act (Cap 23), and if non-compliance rendered the agreement void and incapable of underwriting a decree of specific performance.c.Whether the late Charles Kipngeno Kitur (alias Charles Chirchir), as the purported vendor, had the requisite legal capacity or locus disponendi to dispose of the suit property, being neither a registered proprietor nor an administrator of the estate of the late Kibet Arap Wendot at the material time.d.Whether the Respondent's suit in the trial Court was competent in law, given that it was founded on dealings with estate property by a person lacking authority under the Law of Succession Act (Cap 160).e.Whether the learned trial Court erred in dismissing the Appellants’ counterclaim, notwithstanding the sanctity and indefeasibility of their registered title as guaranteed under Sections 24, 25, and 26 of the Land Registration Act (No. 3 of 2012).f.Whether the learned trial Court misdirected itself in awarding costs to the Respondent despite the manifest legal deficiencies and fatal defects in her claim.g.Consequently, whether the judgment and decree of the Honourable Principal Magistrate delivered on 19th December 2024 ought to be set aside in its entirety, and the Appellants’ counterclaim allowed with costs. 12.Even though the Appellants set out issues for determination, they submitted on the grounds of Appeal. 13.On the first ground of appeal, the Appellants submit that the Learned Trial Magistrate issued an order of specific performance which compelled the 1st Appellant to alienate his proprietary rights in favour of the Respondent. 14.The Appellants also submit that specific performance is an extraordinary relief which presupposes the existence of a valid, binding and enforceable contract. 15.The Appellants rely on Section 3(3) of the Law of Contract Act and submit that the agreement the Respondent relied on did not meet the statutory threshold. 16.The Appellants further submit that the 1st Appellant neither signed nor consented to the said agreement and he cannot therefore be compelled to perform obligations arising from the said instrument. 17.The Appellants rely on the judicial decisions of Reliable Electrical Engineers Ltd vs Mantric Kenya Ltd [2006] eKLR, Leo Investment Ltd vs Estuarine Estate Ltd [2017] eKLR, Bonea vs Bonea (ELC Appeal E054 of 2024) [2025] KEELC 3787 in support of their submissions. 18.It is the Appellants submissions that the Respondent contends that she purchased a portion of land parcel No. Kericho/Kipchimchim/1814. 19.It is also the Appellants submissions that land parcel No. Kericho/Kipchimchim/1814 was registered in the name of Kibet Arap Wendot (Deceased). 20.The Appellants submit that Charles Kipngeno Kitur alias Charles Chirchir (Deceased) was not the registered owner of the said parcel of land and therefore he did not have the requisite locus disponendi. 21.The Appellants also submit that it was after succession proceedings with respect to the estate of Kibet Arap Wendot (Deceased) were concluded, that the 1st Appellant was registered as the owner of land parcel No. Kericho/Kipchimchim/6244. 22.The Appellants further submit that land parcel No. Kericho/Kipchimchim/6244 is distinct from land parcel No. Kericho/Kipchimchim/1814 which was subject of the land sale agreement that the Respondent was relying on. 23.The Appellants rely on the judicial decisions of Agricultural Finance Corporation vs Lengetia Ltd [1985] KLR 765, National Bank of Kenya Ltd vs Pipeplastic Samkolit (K) Ltd & another [2001] KLR 112 and reiterates that the trial Court sought to compel the 1st Appellant to do what he did not covenant to do, in respect of land he did not own pursuant to an agreement that he was not a party to. 24.It is the Appellants submissions that the order of specific performance issued by the Learned Trial Magistrate was legally untenable, factually impossible and inequitable in effect. 25.On the second ground of appeal, the Appellants submit that the Learned Trial Magistrate misdirected himself in failing to appreciate the fact that the purported vendor one, Charles Kipngeno Kitur (Deceased) was not the proprietor of land parcel No. Kericho/Kipchimchim/1814 and neither was he a beneficiary of the estate of Kibet Arap Wendot (Deceased). 26.The Appellants reiterate that at the time of sale of a portion of the said land, the land was still registered in the name of Kibet Arap Wendot (deceased) and it could not therefore be alienated. 27.The Appellants rely on the judicial decisions of Willy Kimutai Kitilit vs Michael Kibet [2018] eKLR, Re Estate of Wanjiku Thuku Ng’ang’a (Deceased) [2020] eKLR, Re Estate of M’Ngarithi M’Miriti (Deceased) [2017] eKLR, Gitau & 2 Others v Wandai & 5 Others [1989]eKLR and submit that the Learned Trial Magistrate ought to have made the finding that Charles Kitur (Deceased) was intermeddling with the estate of a deceased person. 28.It is the Appellants submissions that the enforcement of the said transaction was a disregard to both statute and precedent and the decree issued by the trial Court cannot therefore stand. 29.On the third ground of appeal, the Appellants rely on the judicial decisions of Otieno vs Ougo & another [1987] KLR 407, Re estate of Veronica Njoki Wakagoto (Deceased) [2013]eKLR, Owners of Motor Vessel “Lilian S” vs Caltex Oil (1989) KLR1 and submit that the Respondent’s suit was from its inception, a legal still birth. 30.The Appellants submit that the Respondent purported to derive rights from an agreement that she entered into with a person who had no locus standi to transact. 31.The Appellants also submit that at the time of the alleged sale, succession proceedings with respect to the estate of Kibet Arap Wendot (Deceased) had not been filed. 32.The Appellants further submit that the Respondent’s suit was founded on a nullity and did not properly invoke the Court’s jurisdiction. 33.On the seventh ground of appeal, the Appellants rely on Section 26 of the Land Registration Act, the judicial decisions of Joseph Arap Ng’ok v Moijo Ole Kiiwua & 4 Others [1997]eKLR, Wreck Motors Enterprises vs Commissioner of Lands & 3 Others [1997]eKLR, Parklands Properties Ltd vs Patel [1981] KLR 1 and submit that a Certificate of title is conclusive evidence of proprietorship and is only defeasible upon proof of fraud, misrepresentation and/or illegality. 34.The Appellants submit that the Respondent did not challenge the 1st Appellant’s title and therefore his title is unassailable. 35.The Appellants also submit that the Learned Trial Magistrate erred in dismissing their Counterclaim and yet they had led evidence to show that the Respondent’s occupation of the suit property was unauthorized and unlawful. 36.The Appellants also submit that the Respondent’s possession of the said land was on account of a temporary order of the Court that was obtained during the proceedings and it was not because of any legitimate proprietary rights. 37.The Appellants further submit that once it became manifest that the agreement upon which she anchored her claim was void ab initio, then her occupation ceased to have any colour of legality. 38.It is the Appellants submissions that since the 1st Appellant is the registered owner of land parcel No. Kericho/Kipchimchim/6244, then he is entitled to quiet possession of the same. 39.The Appellants rely on the judicial decisions of Kweyu vs Omuto [1990-1994] EA 234, Wreck Motors Enterprises vs The Commissioner of Lands & Others [1997]eKLR and submit that the Courts have held that the rights of a registered proprietor must be protected against unlawful intrusion. 40.The Appellants also submit that equitable remedies cannot be invoked to sanitize trespass. 41.The Appellants rely on the judicial decisions of Philip Ayaya Aluchio vs Crispinus Ngayo [2014]eKLR, Samson Mwathi vs Simon Kiboi Thuku [2020]eKLR and submit that the trial Court sanctioned trespass when it dismissed their Counterclaim. 42.The Appellants further submit that the trial Court essentially allowed the Respondent to enjoy possession of the suit parcel of land without any colour of right which offends the provisions of the Land Registration Act and Article 40 of the Constitution. 43.The Appellants rely on the judicial decision of Giella vs Cassman Brown & Co. Ltd [1973]EA 358 and submit that the dismissal of their Counterclaim resulted in grave injustice. 44.It is the Appellants submissions that the Respondent’s occupation of the suit parcel of land is trespass cloaked under the false comfort of a defective Court order. 45.It is also the Appellants submissions that this Court should correct the error of the trial Court and allow the Counterclaim by issuing eviction orders and a permanent injunction. 46.On the ninth ground of appeal, the Appellants submit that the Learned Trial Magistrate erred in awarding the Respondent costs. 47.The Appellants reiterate that the Respondent was relying on agreements that were void ab initio and therefore her suit ought to have been struck out. 48.The Appellants submit that the agreements relied on by the Respondent were unenforceable and relies on Section 3(3) of the Contract Act and Section 45 of the Law of Succession Act in support of their submissions. 49.The Appellants also rely on Section 27(1) of the Civil Procedure Act, the judicial decisions of Supermarine Handling Services Ltd v Kenya Revenue Authority [2010] eKLR, Party of Independent Candidate of Kenya Vs Mutula Kilonzo & 2 Others [2013]eKLR, Morgan Air Cargo Ltd v Everest Enterprises Ltd [2014]eKLR, Republic v Rosemary Wairimu Munene (Ex parte Applicant) [2014]eKLR and submit that the award of costs to the Respondent should not be sustained. 50.The Appellants rely on the judicial decisions of Otieno vs Ougo [1986-1989] EALR 486, Trouistik Union v Jane Mbeyu [1993]eKLR, Agricultural Finance Corporation v Lengitia Ltd [1985] KLR 765, Willy Kimutai Kitilit v Michael Kibet [2018]eKLR and submit that Courts have held that a void contract cannot be enforced. 51.The Appellants also submit that Courts have held that they cannot countenance intermeddling of estates and neither do they impose obligations on strangers. 52.The Appellants conclude their submissions by urging the Court to allow the appeal and issue the orders sought in their Counterclaim. The Respondent’s Submissions. 53.The Respondent submits that this Court’s primary role as an Appellate Court is to re-evaluate, re-access, re-analyze the trial Court record and make a just determination. 54.The Respondent also submits that sometime in the year 2008, she approached Charles Kitur (Deceased) with a request to purchase a portion of land parcel No. Kericho/Kipchimchim/1814 measuring 0.4375 acres. 55.The Respondent further submits that Charles Kitur (Deceased) was the son of the 1st and 2nd Appellant and the husband of the 3rd Appellant. 56.It is the Respondent’s submissions that at that time, land parcel No. Kericho/Kipchimchim/1814 was registered in the name of Kibet Arap Wendot (Deceased). 57.It is also the Respondent’s submissions that Kibet Arap Wendot (Deceased) was the father of the 1st Appellant. 58.It is further the Respondent’s submissions that as a precautionary measure, they entered into an agreement with the Appellants which agreement was drafted by Charles Kipyegon Korir (Deceased) of C.K Korir & Co. Advocates. 59.The Respondent submits that she paid for the portion of land she purchased and has been in possession for eighteen years. 60.The Respondent also submits that she was to be given a title deed for the portion of land she purchased after the finalization of succession proceedings with respect to the estate of Kibet Arap Wendot (Deceased). 61.The Respondent further submits that she relied on the good will of the Appellants and paid for the succession proceedings and survey fees. 62.It is the Respondent’s submissions that upon completion of the succession proceedings, land parcel No. Kericho/Kipchimchim/1814 was registered in the name of the 1st Appellant as land parcel No. Kericho/Kipchimchim/6244. 63.It is also the Respondent’s submissions that immediately after the death of Charles Kipngeno, the Appellants requested for permission to bury him on a portion of the land she purchased and promised to pay her after the burial. 64.It is further the Respondent’s submissions that they entered into an agreement dated 17th February, 2016. 65.The Respondent submits that since then, she has only been in occupation of 0.2 acres instead of 0.4375 acres. 66.The Respondent also submits that the Appellants later turned their backs and when a surveyor visited the land in March, 2021, the 1st Appellant refused to fulfill his obligations under the agreement. 67.It is further the Respondent’s submissions that efforts to have a title issued for the portion of land she purchased proved futile and she therefore filed Kericho CM ELC Case No. E054 of 2021. 68.It is the Respondent’s submissions that initially the Appellants did not file their Statement of defence and therefore judgement was entered against them. 69.The Respondent submits that later the said judgement was set aside and the Appellants were granted leave to file their Statement of defence out of time. 70.The Respondent also submits that the suit was heard and the trial Court delivered judgement on 19th December, 2024 and issued orders of specific performance. 71.The Respondent further submits that the Learned Trial Magistrate addressed the issue whether the agreement they entered into was valid. 72.It is the Respondent’s submissions that the Learned Trial Magistrate relied on Section 3(3) of the Law of Contract Act and found that the Appellants witnessed the land sale agreement dated 9th October, 2008. 73.It is also the Respondent’s submissions that the agreement dated 9th October, 2008 was between herself and Charles Kipngeno Kitur (deceased). 74.It is further the Respondent’s submissions that the Appellants were witnesses to the said land sale agreement and they all executed it. 75.The Respondent submits that in the appeal, the Appellants have not denied the existence of the said land sale agreement and they affirm that Charles Kipngeno Kitur (Deceased) was the 1st and 2nd Appellants son. 76.The Respondent also submits that the Appellants have not denied that the land in question initially belonged to Kibet Arap Wendot (Deceased), the father to the 1st Appellant and the grandfather of Charles Kipngeno Kitur (Deceased). 77.The Respondent further submits that succession proceedings with respect to the estate of Kibet Arap Wendot (Deceased) were commenced in Succession Cause No. 29 of 2005. 78.It is the Respondent’s submissions that despite the grant being issued in the year 2011, the succession proceedings were commenced in the year 2005. 79.It is also the Respondent’s submissions that the Appellants were financially constrained and they therefore looked for buyers to purchase portions of the land. 80.It is further the Respondent’s submissions that even though the Appellants contend that the agreement was void and it amounted to intermeddling, it is evident that they are the beneficiaries of the said actions. 81.The Respondent submits that the 1st Appellant authorized his deceased son to sell the said portion of land and the Appellants are therefore authors of their own misfortune. 82.The Respondent also submits that the 2nd Appellant wrote a letter requesting for a cow for the land that her husband had sold. 83.The Respondent further submits that the said letter confirms that the 1st Appellant was involved in the sale way back in the year 2008. 84.It is the Respondent’s submissions that her husband paid the 2nd Appellant the sum of money that she owed. 85.It is also the Respondent’s submissions that the Learned Trial Magistrate observed in the judgement that the agreement relied on by the parties was signed by the Appellants and the Appellants did not disprove that those were their signatures. 86.The Respondent relies on Section 107 of the Evidence Act in support of her submissions. 87.The Respondent relies on the judicial decision of Jackson Kamau Kanyuru vs Stephen Githinji Weru [2018]eKLR and submits that the Learned Trial Magistrate having found that the agreement complied with Section 3(3) of the Law of Contract Act, correctly issued an order of specific performance. 88.The Respondent also submits that this Court ought to uphold the findings of the Learned Trial Magistrate. 89.It is the Respondent’s submissions that the Appellants should not be allowed to use the Law of Succession Act as a vehicle for fraud. 90.It is also the Respondent’s submissions that the Appellants colluded to sell the said parcel of land and if the present appeal is allowed, she will suffer an injustice. 91.It is further the Respondent’s submissions that the Appellants are bound by the agreement that they entered into. 92.The Respondent relies on Articles 10 & 159 of the Constitution of Kenya and submits that since equity is a constitutional principle, the equitable doctrines of constructive trust and proprietary estoppel are applicable to the present proceedings. 93.The Respondent concludes her submissions by relying on the judicial decision of Mbugua Mungai vs Harrison Munyi Civil Application No. 167 of 2010. Analysis And Determination. 94.The issues that arise for determination are as follows;a.Whether the Learned Trial Magistrate erred in failing to find that Charles Kipngeno Kitur (Deceased) did not have capacity to sell a portion of land parcel No. Kericho/Kipchimchim/1814.b.Whether the Learned Trial Magistrate erred in failing to find that there was no valid agreement between the Respondent and the 1st Appellant and in issuing orders of specific performance.c.Whether the Learned Trial Magistrate erred in dismissing the Appellants Counterclaim.d.Whether the Learned Trial Magistrate erred in awarding the Respondent costs.e.Who should bear costs of the appeal. A. Whether the Learned Trial Magistrate erred in failing to consider that Charles Kipngeno Kitur (Deceased) did not have capacity to sell a portion of land parcel No. Kericho/Kipchimchim/1814. 95.This question for determination addresses grounds 2 and 3 of the Appellants Memorandum of Appeal. 96.The role of the Appellate Court was stated by the Court of Appeal in the judicial decision of Gitobu Imanyara & 2 others Vs Attorney General [2016] eKLR. It was held as follows;“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect.” (Emphasis mine) 97.In Abok James Odera T/A A.J Odera & Associates Vs John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR the Court held as follows;“This being a first appeal, we are reminded of our primary role as a first Appellate Court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.” (Emphasis mine) 98.The Appellants contend that the Learned Trial Magistrate erred in failing to consider that Charles Kipngeno Kitur (Deceased) did not have capacity to sell land parcel No. Kericho/Kipchimchim/1814. 99.The Appellants also contend that at the time of the alleged sale, land parcel No. Kericho/Kipchimchim/1814 was registered in the name of Kibet Arap Wendot (Deceased). 100.The Appellants further contend that Charles Kipngeno Kitur (Deceased) was not a beneficiary of the estate of Kibet Arap Wendot (Deceased) and neither was he authorized to sell it. 101.It is the Appellants contention that the agreement purportedly entered into by Charles Kipngeno Kitur (Deceased) and the Respondent was null and void ab initio. 102.The Respondent did not address the issue whether Charles Kipngeno Kitur (Deceased) had capacity to sell a portion of land parcel No. Kericho/Kipchimchim/1814 and instead submitted that Charles Kipngeno Kitur (Deceased) was authorized by the 1st Appellant to sell a portion of the said parcel of land. 103.A perusal of the judgement delivered on 19th December, 2024 shows that the Learned Trial Magistrate did not address the issue whether Charles Kipngeno Kitur (Deceased) had capacity to sell a portion of land parcel No. Kericho/Kipchimchim/1814. 104.During the hearing, the Appellants testified as DW1, DW2 and DW3 respectively. They all adopted their witness statements as part of their evidence-in-chief. 105.The 1st Appellant filed a witness statement dated 25th August, 2023 wherein he stated at paragraph 2, that land parcel No. Kericho/Kipchimchim/1814 belonged to Kibet Arap Wendot his deceased father. 106.He also stated that no one had the authority to sell the said parcel of land as the family of the deceased had not subdivided it. 107.The 2nd and 3rd Appellants in their witness statements dated 25th August, 2023 also stated that no one had the authority to sell the suit parcel of land. 108.It is not disputed that as at the year 2008, land parcel No. Kericho/Kipchimchim/1814 was registered in the name of Kibet Arap Wendot (Deceased) and it is also not disputed that succession proceedings with respect to his estate had not commenced. 109.Section 45(1) of the Law of Succession Act provides as follows;“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.” 110.In the judicial decision of Kiarie v Sang & 5 others [2026] KEELC 2047 (KLR) the Court held as follows;“Under section 45 above, no party can have capacity to deal with the land of a deceased person unless they have a grant of representation appointing them as a representative of that estate. Where a party deals with such property in the absence of a grant, their actions amount to intermeddling.”(Emphasis mine) 111.As was held in the above cited judicial decision, no person can have capacity to deal with the property of a deceased person unless they have a grant of representation. 112.In the present suit, it is not disputed that Charles Kipngeno Kitur (Deceased) did not have letters of administration with respect to the estate of Kibet Arap Wendot (Deceased) and he, therefore, did not have capacity to sell a portion of land parcel No. Kericho/Kipchimchim/1814 to the Respondent. 113.The Learned Trial Magistrate erred in not addressing the issue whether Charles Kipngeno Kitur (Deceased) had or did not have capacity to sell a portion of land parcel No. Kericho/Kipchimchim/1814. 114.Therefore, Grounds 2 and 3 of the Memorandum of Appeal succeed. B. Whether the Learned Trial Magistrate erred in failing to find that there was no valid agreement between the Respondent and the 1st Appellant and in issuing orders of specific performance 115.This question for determination addresses grounds 1, 4, 5 and 6 of the Memorandum of Appeal. 116.The Appellants contend that the 1st Appellant did not enter into any land sale agreement with the Respondent and neither did he witness or consent to any purported sale. 117.The Appellants also contend that at the time of the alleged transaction, land parcel No. Kericho/Kipchimchim/1814 had not been transferred to the 1st Appellant. 118.The Appellants further contend that the Learned Trial Magistrate therefore erred in issuing orders of specific performance. 119.The Appellants also contend that no letters of administration with respect to the estate of Charles Kipngeno Kitur (Deceased) had been issued and therefore the Respondent’s suit was defective. 120.The Respondent submits that the Appellants were witnesses in the land sale agreement dated 9th October, 2008 which agreement she had entered into with Charles Kipngeno Kitur (Deceased). 121.The Learned Trial Magistrate at the last paragraph of page 4 of the judgement held as follows;“I have thus considered the agreements between the Plaintiff and one Charles Kipngeno Kitur entered into on 9th October, 2008 which was produced. The sale agreement has signatures of the parties and the witnesses. The agreement in my view is a valid one. Charles Kipngeno Kirui (sic) who was the vendor has since passed on. The 1st Defendant initiated the probate process and had the title transferred to his name. are clearly signed by the parties who are specifically designated, and are attested to by witnesses. (sic)” 122.Before the trial Court, the Respondent testified as PW1. She produced as Exhibit P1 a copy of a land sale agreement dated 9th October, 2008. 123.The agreement is between Charles Kipngeno Korir (Vendor) and Elizabeth Chepkemoi Rono (Purchaser). The agreement is for the purchase of a 0.4375-acre portion of land parcel No. Kericho/Kipchimchim/1814 at a consideration of Kshs. 600,000/=. The agreement states that the purchaser paid Kshs. 11,000/= upon execution with the balance of Kshs. 589,000/= was to be paid at the conclusion of the agreement. The agreement is signed by the vendor and purchaser and witnessed by the Appellants. 124.It is evident from the said land sale agreement that the Respondent purchased the said portion of land from Charles Kipngeno Korir (Deceased) and the Appellants were witnesses to the said land sale agreement. Needless to say that the import of witnessing an agreement is that the persons witnessing confirm that they have seen the purchaser and vendor append their signatures to an agreement. 125.Therefore, there was no land sale agreement entered into by the Respondent and the Appellants, wherein the Appellants sold the suit parcel to the Respondent. 126.The Learned Trial Magistrate further held at paragraphs 2, 6, 7 & 8 of page 5 and paragraph 1 of page 6 of the judgement as follows;“The Plaintiff has sued the Defendants as the administrators of the estate of the said Charles Kipngeno who was a beneficiary to the estate for specific performance…The testimony of all the witnesses show that the Plaintiff purchased the land from one Charles Kipngeno Kirui (sic) who was a son to the 1st and 2nd Defendants and a husband to the third. All the Defendants were witnesses to the sale agreements.After the passing on of the said Charles, succession was done and the 1st Defendant became the administrator. For all intents and purposes, his role is to distribute the estate to the beneficiaries and pay out the debts from the estate which includes the portion bought by the Defendant.In my view, the 1st Defendant assumed the role of the vendor having been appointed the administrator and has breached the contract by failing to perform his duties as an administrator…I find the Plaintiff has proved her case as required. I find judgement for the Plaintiff against the Defendants jointly and severally and proceed to make the following orders;a.An order for specific performance by the 1st Defendant in particular to demarcate and transfer a portion measuring 0.4375 of an acre out of Kericho/Kipchimchim/6244 to the Plaintiff.b.Costs of this suit.” 127.It is evident that the basis upon which the Learned Trial Magistrate issued orders of specific performance was on the contention that the 1st Appellant was the administrator of the estate of Charles Kipngeno Kitur (Deceased). 128.During cross examination, the Respondent confirmed that she sued the 1st Appellant because he was the father of Charles Kipngeno Kitur (Deceased). 129.In his witness statement which he adopted as part of his evidence-in-chief, the 1st Appellant stated that he commenced succession proceedings with respect to the estate of his deceased father one Kibet Arap Wendot and after confirmation of the grant, land parcel No. Kericho/Kipchimchim/1814 was registered as land parcel No. Kericho/Kipchimchim/6244. 130.From the totality of the evidence adduced before the trial Court it is evident that no succession proceedings were commenced in respect of the estate of Charles Kipngeno Kitur (Deceased). 131.Therefore, Learned Trial Magistrate erred in finding that the 1st Appellant was the administrator of the estate of Charles Kipngeno Kitur (Deceased). 132.In the judicial decision of Reliable Electrical Engineers (K) Ltd v Mantrac Kenya Limited [2006] KEHC 2855 (KLR) the Court held as follows;“Specific performance, like any other equitable remedy, is discretionary and the Court will only grant it on the well settled principles.The jurisdiction of specific performance is based on the existence of a valid, enforceable contract. It will not be ordered if the contract suffers from some defect, such as failure to comply with the formal requirements or mistake or illegality, which makes the contract invalid or unenforceable.” (Emphasis mine) 133.In the above cited judicial decision, the Court held that the remedy of specific performance can only be granted if there exists a valid and enforceable contract. 134.Under issue (A) above, I have made a finding that Charles Kipngeno Korir (Deceased) did not have the capacity to sell a portion of land parcel No. Kericho/Kipchimchim/1814. It follows that the land sale agreement dated 9th October, 2008 is not valid and/or enforceable. 135.That being the case, the Learned Trial Magistrate erred in finding that there was a valid land sale agreement and in issuing orders of specific performance. 136.Consequently, grounds 1, 4, 5 and 6 of the Appeal succeed. C. Whether the Learned Trial Magistrate erred in dismissing the Appellants Counterclaim. 137.The Appellants submit that the 1st Appellant is the registered owner of land parcel No. Kericho/Kipchimchim/6244 and he therefore has absolute and indefeasible rights over the said parcel of land. 138.The Appellants also submit that the Respondent trespassed on the said parcel of land and therefore the Learned Trial Magistrate erred in dismissing the Counterclaim. 139.The Respondent did not address this issue in her submissions. 140.The Learned Trial Magistrate at the last paragraph of page 5 of the judgement held as follows;“The Defendants have not established in what way they are entitled to the prayers being sought in the Counterclaim…for that reason, the counterclaim fails in toto.” 141.In the Counterclaim dated 23rd August, 2023, the Appellants stated that the 1st Appellant was the registered owner of land parcel No. Kericho/Kipchimchim/6244. 142.They Appellants also stated that land parcel No. Kericho/Kipchimchim/6244 was initially registered as land parcel No. Kericho/Kipchimchim/1814. 143.The Appellants further stated that the Respondent encroached on the said parcel of land while contending that she purchased a portion of it from Charles Kipngeno Kitur (Deceased). 144.The Appellants state that the 1st Appellant did not sell any portion of land to the Respondent and they therefore sought the following prayers;a.A declaration that the 1st Defendants (now Plaintiff) is the absolute, sole and legal proprietor of the parcel of land known as Kericho/Kipchimchim/6244.b.A permanent injunction be issued restraining the Plaintiff (now defendant), their workers, servants and or agents from entering on and/or from erecting or causing to be erected thereon any structures, or from in any way interfering with the plaintiff's use and enjoyment of the plaintiffs said property.c.An order of eviction of the Plaintiff (now defendant) from the parcel of land known as Kericho/Kipchimchim/6244.d.Cost of the suit.e.Any other relief the Court deems fit to grant. 145.As previously stated, during the hearing, the Appellants adopted their witness statements as part of their evidence-in-chief. 146.In their witness statements, they neither made averments in support of the Counterclaim nor produced any documents in support of the Counterclaim. 147.From the totality of the evidence adduced by the Appellants before the trial Court, it is apparent that they did not lead any evidence on the Counterclaim. 148.The Court of Appeal in Attorney General v James Alfred Koroso [2018] KECA 129 (KLR) cited with approval the judicial decision of Edward Muriga through Stanley Muriga V Nathaniel D. Schulter Civil Appeal No. 23 of 1997 wherein it was held as follows;“In this matter; apart from filing its statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st Plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations. Sections 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence.” (Emphasis mine) 149.In the above cited judicial decision, the Court held that where a Defendant fails to adduce evidence, his statement of Defence is regarded as containing mere allegations. 150.As stated, from the trial Court record, it is apparent that the Appellants did not lead any evidence on the Counterclaim and only denied that Charles Kitur (Deceased) had authority to sell. 151.It is therefore my finding that the Learned Trial Magistrate made no mistake in dismissing the Counterclaim. 152.This ground of the appeal fails. D. Whether the Learned Trial Magistrate erred in awarding the Respondent costs. 153.The Appellants contend that the Learned Trial Magistrate erred in awarding the Respondent costs. 154.The Appellants submit that the Respondent relied on agreements that were void ab initio and therefore the Learned Trial Magistrate ought not to have awarded her costs. 155.The Respondent did not submit on this issue. 156.Section 27(1) of the Civil Procedure Act provides as follows;“Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the Court or judge, and the Court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the Court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers:Provided that the costs of any action, cause or other matter or issue shall follow the event unless the Court or judge shall for good reason otherwise order. 157.In the judicial decision of Kirugi v Jan Japan (K) Limited & another [2026] KEHC 4486 (KLR) the Court while considering Section 27(1) of the Civil Procedure Act held as follows;“ 13.The provision establishes two guiding principles. First, the award of costs is a matter within the discretion of the Court. Second, the general rule is that costs follow the event, unless the Court for good reason orders otherwise. 14.The Supreme Court in Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others {2014} eKLR emphasized that while the general rule is that costs follow the event, the Court retains a wide discretion which must be exercised judiciously and not mechanically, and held that “Costs follow the event but the court has discretion to determine otherwise depending on the circumstances of the case.” (Emphasis mine) 158.In the judicial decision of Chome & 5 others v Greenbelt Warehouses Limited [2025] KEELC 5828 (KLR) the Court held as follows;“The provision of Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that costs follow the events. In the case of “Hussein Muhumed Sirat v Attorney General & Another [2017] eKLR, the Court stated that costs follow the event as a well-established legal principle, and the successful party is entitled to costs unless there are other exceptional circumstances...”(Emphasis mine) 159.In Chome & 5 others v Greenbelt Warehouses Limited (supra) the Court relied on the judicial decision of Hussein Muhumed Sirat v Attorney General & Another [2017] eKLR where it was held that a successful party in a suit is entitled to costs. 160.It is important to note that the Appellants have based their contention that the Learned Trial Magistrate erred in awarding costs on the argument that the agreements that the Respondent relied on were void ab initio. It is important to note that this was not the finding of the Learned Trial Magistrate. 161.The Learned Trial Magistrate found that the Respondent’s suit succeeded and he therefore awarded her costs. It is my view that this was well within his discretion and the Appellants have not demonstrated that the Learned Trial Magistrate’s exercise of discretion in awarding costs was injudicious. 162.This ground of appeal therefore fails. E. Who should bear costs of the appeal. 163.The general rule is that costs shall follow the event. This is in accordance with the provisions of Section 27 of the Civil Procedure Act (Cap. 21). 164.A successful party should ordinarily be awarded costs of an action unless the Court, for good reason, directs otherwise. Disposition. 165.In the result, the appeal partially succeeds and I find and order as follows;a.The Judgement delivered in Kericho CM ELC Case No. E054 of 2021 is hereby set aside.b.The Respondent’s suit in Kericho CM ELC Case No. E054 of 2021 together with the Appellants Counterclaim are hereby dismissed.c.Each party shall bear own costs of the suit and of the counterclaim.d.The Appellants shall have costs of the appeal. 166.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT KERICHO THIS 4TH DAY OF JUNE, 2026.L. A. OMOLLOJUDGE.In the presence of: -Mr. Godwin Langat for the Appellants.Mr. Onesmus Langat for the Respondent.Court Assistant; Mr. Joseph Makori.