https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5344

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KISUMU** **ELC APPEAL NO. 57 OF 2019** **WUODGOT ODHIAMBO MIGOT (Formerly DAUDI ODHIAMBO MIGOT)** **APPELLANT** **-VERSUS-** **SAMUEL ONGONG’A OTIENO** ***(The Personal Legal Representative of the Estate of*** ***the late Jemima Akinyi Oyare)*** **RESPONDENT** ***(Being an appeal from the Ruling and the Judgment of Hon. C. L. Yalwala, Principal Magistrate, delivered on 21st August 2019 and 4th December 2019 respectively in Maseno PMCC Civil Suit No. 4 (OS) of 2010)*** **JUDGMENT** 1. This is a first appeal against the decision of the Principal Magistrate’s Court at Maseno (Hon. C. L. Yalwala, PM) in Civil Suit No. 4 (OS) of 2010. By the Memorandum of Appeal dated 30th December 2019 and filed on 31st December 2019, the Appellant challenges both the Ruling delivered on 21st August 2019 and the Judgment delivered on 4th December 2019, together with all consequential orders. 2. The original Defendant in the suit, the late **Jemima Akinyi Oyare**, passed away in the course of these proceedings. Her son, **Samuel Ongong’a Otieno**, was substituted as the Respondent in his capacity as the personal legal representative of her estate. He had also testified at the trial as DW4. 3. The dispute concerns land parcel **L.R. No. Kisumu/Othany/3727** (“the suit property”), which was originally owned by the late **Nathaniel Adero Odero**, the Appellant’s father, who died on 22nd October 1996. It was common ground at the trial that on or about 14th December 2007, members of the Adero family, led by the Appellant’s brother, William Odongo Adero, and his sister-in-law, Mildred Akinyi (the widow of the Appellant’s brother, the late Tom Odhiambo Adero), sold the suit property to the late Jemima Akinyi Oyare at a consideration of Kshs. 40,000/=. The sale agreement was executed before, and witnessed by, the Area Assistant Chief, Mr. Caleb Apondi Okumu, and the purchase price was paid in cash to William Odongo Adero in his presence. The proceeds were applied towards the funeral expenses of the late Tom Odhiambo Adero, whose body was then lying at a mortuary in Kisii. The purchaser was let into possession of the suit property shortly thereafter and commenced utilizing it. 4. The Appellant, who was then working in Mombasa, was neither present at nor a party to the sale. Upon his return, and following a dispute that later arose within the family, he registered the estate of his late father with the Public Trustee (Public Trustee Kisumu Administration Cause No. 91 of 1999) and thereafter petitioned for representation in Kisumu High Court Succession Cause No. 45 of 2009. A grant of letters of administration intestate was issued to him on 6th April 2009 and confirmed on 16th April 2010. Upon confirmation, the Appellant, as administrator, distributed the estate of the deceased, which comprised the suit property and eleven other parcels, and allocated the suit property to himself. He was registered as its proprietor and a title deed was issued to him on 30th May 2011, while the suit before the trial court was pending. 5. Prior to the institution of the suit, the dispute between the parties had been ventilated before the Kisumu West Land Disputes Tribunal, whose award was adopted in Kisumu Chief Magistrate’s Court Land Case No. 24 of 2011. The award, which was in favour of the purchaser, directed the Adero family to assist her to obtain a title deed to the suit property or, in the alternative, to refund the full purchase price together with interest and expenses incurred, with the status quo being maintained in the interim. 6. By the Originating Summons dated 16th December 2009 and filed on 7th January 2010, the Appellant (as Plaintiff) sought the determination of the questions whether he was an heir to the suit property, whether the Defendant had trespassed onto it, and whether he was entitled to a permanent injunction against her. He also sought mesne profits at Kshs. 38,400/= per year. Upon directions being taken, the Originating Summons and its supporting affidavit were deemed to be the plaint, while the Defendant’s Replying Affidavit sworn on 24th March 2014 was deemed to be the defence and counterclaim, in which she asserted that she had lawfully purchased the suit property and sought, in the alternative, a refund of the purchase price. 7. The Plaintiff’s case was heard and closed, whereafter the Defendant filed an application dated 29th January 2019 seeking the re-opening of the proceedings to enable her present her defence. When the application came up before the trial court on 21st August 2019, the Appellant, who had initially filed a replying affidavit in opposition, expressly conceded to it on the record. The trial court thereupon allowed the application by consent of the parties and directed that the defence case be heard. The defence hearing proceeded on 16th October 2019, when the Defendant testified and called three witnesses, and judgment was thereafter delivered on 4th December 2019. 8. In the impugned judgment, the learned trial magistrate found that the sale of the suit property on 14th December 2007 had been undertaken before the completion of the succession process and therefore contravened Section 45 of the Law of Succession Act, Cap 160. He nevertheless declined to declare the Defendant a trespasser, being guided by the decision of **Mabeya J. in Morris Mwiti Mburugu v Denis Kimanthi M’Mburugu [2016] eKLR,** on the basis that the sale had been a family decision, undertaken for the benefit of the family in meeting the funeral expenses of one of its own, and had occasioned no prejudice to the Appellant or any other beneficiary. He found that the suit property had since been transferred to and registered in the name of the Appellant and was no longer available for transfer to the Defendant. He accordingly dismissed the Plaintiff’s claim for a declaration of trespass and for mesne profits, and allowed the Defendant’s counterclaim by entering judgment in her favour against the Plaintiff for a refund of the purchase price of Kshs. 40,000/= together with interest thereon at court rates from 14th December 2007 until payment in full. He further ordered that the Defendant would retain possession of the suit property until the refund, inclusive of interest, was paid, and awarded her the costs of the suit. 9. Pursuant to the judgment, the Defendant filed a party and party bill of costs dated 22nd January 2020, which was taxed by the trial court vide the Ruling delivered on 26th February 2020 at Kshs. 68,095/=. The bill of costs and the taxation ruling were placed before this Court through the Supplementary Record of Appeal dated 17th October 2025. **The Appeal** 10. Aggrieved by both the Ruling of 21st August 2019 and the Judgment of 4th December 2019, the Appellant preferred the instant appeal on the following four grounds as set out in the Memorandum of Appeal: ***i. That the Honourable Court erred in law and in fact by failing to appreciate that the matter had been exhaustively exhausted by the courts and what remained for the Defendant/Applicant was to appeal within the prescribed time frame;*** ***ii. That the trial court erred in law and in fact by failing to appreciate that the Defendant/Applicant’s application dated 29th January 2019 did not invoke the requisite provisions of the law and therefore the court could not issue orders as applied, and the same application was as well filed out of time and without the leave of the Honourable Court;*** ***iii. That the trial court erred in law and in fact by failing to appreciate the direct provisions of Section 45 of the Law of Succession Act, Cap 160 Laws of Kenya, and failing to appreciate that neither the Public Trustee (Administration Cause No. 91 of 1999) nor the Appellant herein were involved in the said sale in order to validate the said sale which is null and void ab initio;*** ***iv. That the trial court failed to appreciate the precursor court orders and orders granted by the High Court, and erred by ordering that the Appellant herein pays the purchase price of monies that were received by parties who did not demonstrate any beneficial interest in the land in question.*** 11. The Appellant prays that the appeal be allowed in its entirety and that both the Ruling and the Judgment, together with all subsequent orders, be set aside, with costs of the appeal. 12. The appeal was canvassed by way of written submissions. The Appellant filed submissions dated 26th May 2026 through the firm of Odongo Okal & Company Advocates, while the Respondent filed submissions dated 25th May 2026 through the firm of Mbeka & Associates Advocates. I have considered both sets of submissions in their entirety together with the Record of Appeal and the Supplementary Record of Appeal. **The Appellant’s Submissions** 13. Counsel for the Appellant framed six issues for determination, all revolving around the legality of the sale and the propriety of the refund order. It was submitted, first, that the sale of the suit property was illegal, null and void ab initio, having been undertaken by persons without a grant of representation, in contravention of Section 45 of the Law of Succession Act, and without the involvement of either the Public Trustee, under whose administration the estate then was, or the Appellant. Reliance was placed on **Trouistik Union International & Another v Jane Mbeyu & Another [1993] eKLR, Virginia Edith Wambui Otieno v Joash Ochieng Ougo & Another [1987] eKLR and In Re Estate of M’Ngarithi M’Miriti (Deceased) [2017] eKLR** for the proposition that only a duly appointed personal representative has capacity to deal with the estate of a deceased person, and that any sale of estate property before confirmation of grant amounts to intermeddling. 14. Secondly, it was submitted that a court of law cannot enforce rights arising from an illegal transaction, on the authority of Lord Mansfield’s celebrated dictum in **Holman v Johnson (1775) 1 Cowp****341** that no court will lend its aid to a man who founds his cause of action upon an illegal act, and the Court of Appeal’s decision in **Kenya Airways Limited v Satwant Singh Flora [2013] eKLR.** The Respondent’s counterclaim, being founded on a void sale, ought therefore to have been dismissed. 15. Thirdly, counsel submitted that the Appellant could not be held liable for money he never received. There was no evidence that the Appellant received the purchase price, participated in the negotiations, executed the sale agreement, or that the Public Trustee or the estate benefited from the payment. Invoking the doctrine of privity of contract as expounded in **Agricultural Finance Corporation v Lengetia Limited & Jack Mwangi [1985] eKLR,** it was argued that the Respondent’s remedy, if any, lay against the individuals who received the money. Counsel further submitted that the foundation of any restitutionary claim collapsed in the absence of proof that the Appellant was enriched at the Respondent’s expense, and cited **National Bank of Kenya v Pipeplastic Samkolit (K) Ltd & Another [2001 eKLR** for the proposition that courts cannot rewrite contracts for parties or impose obligations not assumed by them. 16. Finally, it was submitted that the awards of costs and interest, being consequential orders, must fall with the principal decree, on the authority of **Supermarine Handling Services Ltd v Kenya Revenue Authority [2010] eKLR,** and that permitting execution against the Appellant’s property would amount to sanctioning an illegality contrary to public policy, counsel invoking the well-known dictum in **Macfoy v United Africa Co. Ltd** that if an act is void it is in law a nullity, and one cannot place something on nothing and expect it to stand. **The Respondent’s Submissions** 17. Counsel for the Respondent condensed the four grounds of appeal into four issues. On the first ground, it was submitted that the contention that the matter had been exhausted by the courts was misleading, since the decision in Kisumu Chief Magistrate’s Court Land Case No. 24 of 2011, adopting the award of the Kisumu West Land Disputes Tribunal, was in favour of the Defendant, who therefore had no basis for lodging any appeal; and that it was the Appellant himself who thereafter filed and prosecuted the primary suit to full trial. 18. On the challenge to the Ruling of 21st August 2019, counsel invoked Section 79G of the Civil Procedure Act and submitted that any appeal against that Ruling ought to have been filed on or before 21st September 2019 or with leave to appeal out of time, none of which was done, the Memorandum of Appeal having been filed on 31st December 2019, over three months after the Ruling. There was accordingly no valid and competent appeal against the said Ruling. 19. On the merits, counsel restated the duty of the first appellate court as set out in **Selle & Another v Associated Motor Boat Company Ltd & Others (1968) EA 123 and Abok James Odera t/a A.J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR.** It was submitted that the sale was uncontested on the evidence; that it was a family transaction witnessed by the Area Assistant Chief and undertaken to give the Appellant’s deceased brother a befitting send-off; and that the trial magistrate properly relied on **Morris Mwiti Mburugu v Denis Kimanthi M’Mburugu [2016] eKLR, Gichuhi v Muhura & Another; Omega (Interested Party) (Environment & Land Case E057 of 2022) [2023] KEELC 20905 (KLR) and Stephen Waweru Ng’ang’a v Kimani Ng’ang’a, Nyeri HC P&A No. 1 of 2011** in ordering a refund of the purchase price. Counsel submitted that allowing the Appellant, a beneficiary of the estate, to retain both the suit property, which has since been registered in his name, and the purchase price, would amount to unjust enrichment at the expense of the Respondent, who acted in good faith, and relied on **Madhupaper International Ltd & Another v Kenya Commercial Bank Ltd & 2 Others [2003] eKLR and Chase International Investment Corporation & Another v Laxman Keshra & Others (1978) KLR 143.** On costs, counsel cited Section 27 of the Civil Procedure Act, **Cecilia Karuru Ngayu v Barclays Bank of Kenya & Another [2016] eKLR and Orix Oil (Kenya) Limited v Paul Kabeu & 2 Others [2014] eKLR** and urged that the appeal be dismissed with costs to the Respondent. **Analysis and Determination** 20. Having considered the Record of Appeal, the Supplementary Record of Appeal, the grounds of appeal and the rival submissions, it is my considered view that the following three issues arise for determination in this appeal: **i. Whether the appeal against the Ruling delivered on 21st August 2019 is competent;** **ii. Whether the trial court erred in dismissing the Appellant’s claim and in allowing the Respondent’s counterclaim for a refund of the purchase price of Kshs. 40,000/= together with interest; and** **iii. Which party should bear the costs of the appeal.** 21. This being a first appeal, this Court is under a duty to re-evaluate, re-assess and re-analyse the evidence on the record afresh and to arrive at its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify and making due allowance for that. **Issue No. (i): Whether the appeal against the Ruling delivered on 21st August 2019 is competent** 22. The first and second grounds of appeal are directed at the Ruling of 21st August 2019, by which the trial court allowed the Defendant’s application dated 29th January 2019 and re-opened the proceedings to enable the Defendant to present her defence. The determination of this issue must begin with what actually transpired before the trial court on that date. The certified typed proceedings, which form part of the Record of Appeal, record the following exchange on 21st August 2019: ***“Plaintiff:- We did not agree at the CAM. There was an application dated 29/1/2019. Though I had filed a replying affidavit to oppose, upon your advise, I do concede to it. It may be allowed and we be given a date for the defendant to conduct her defence. I however pray for an early date.*** ***Defendant:- I am agreeable. I just want to be heard with any witness. I have 3 of them.*** ***COURT: - In the premises and by consent of the parties, the application dated 29/1/2019 is allowed as prayed. The defence case is to be heard forthwith upon re-opening of the proceedings herein.”*** 23. It is therefore plain from the record that the order of 21st August 2019 was not a contested determination at all. It was a consent order, made upon the Appellant’s own express concession, recorded in his presence and at his instance. The law on such orders is well settled. Section 67(2) of the Civil Procedure Act provides that no appeal shall lie from a decree passed by the court with the consent of the parties. Further, as the Court of Appeal held in **Flora N. Wasike v Destimo Wamboko [1988] eKLR,** a consent order entered into by the parties has contractual effect and can only be set aside on grounds which would justify the setting aside of a contract, such as fraud, collusion, misrepresentation or mistake. No such vitiating ground has been pleaded, demonstrated or even alluded to in this appeal. A party who expressly concedes to an application before a trial court cannot turn around on appeal and impugn the very order made at his invitation. That would be a classic case of approbating and reprobating, which the law does not countenance. 24. There is a second, equally fatal, difficulty. Section 79G of the Civil Procedure Act requires an appeal from a subordinate court to be filed within thirty days of the date of the decree or order appealed against, with a proviso permitting the admission of an appeal out of time where good and sufficient cause is shown. The Ruling was delivered on 21st August 2019. The Memorandum of Appeal was filed on 31st December 2019, more than four months later. No application for extension of time was ever made and no leave to appeal out of time was ever granted. In so far as it relates to the Ruling of 21st August 2019, the appeal is therefore hopelessly out of time. I would add, for completeness, that the said Ruling was not even included in the Record of Appeal; it is only discernible from the typed proceedings. 25. Even if I were to consider the matter on its merits ex abundanti cautela, I would find no fault in the trial court’s decision to re-open the proceedings and afford the Defendant an opportunity to present her defence. The right to a fair hearing under Article 50 of the Constitution, and the overriding objective of determining disputes justly, favoured the course taken. The Appellant suffered no prejudice: he participated fully in the defence hearing, cross-examined all four defence witnesses at length, and had judgment delivered on the entirety of the evidence. Grounds one and two of the appeal must therefore fail, and the appeal against the Ruling of 21st August 2019 is struck out as incompetent. **Issue No. (ii): Whether the trial court erred in dismissing the Appellant’s claim and in allowing the Respondent’s counterclaim for a refund of the purchase price** 26. I turn to the substance of the appeal against the Judgment of 4th December 2019, which was filed within time and is properly before this Court. Before addressing the legality of the sale and the refund order, I dispose of the first ground of appeal in so far as it is directed at the judgment, namely, the contention that the matter had been exhausted by the courts and that what remained was for the Defendant to appeal within the prescribed time. With respect, that contention is misconceived. The award of the Kisumu West Land Disputes Tribunal, as adopted in Kisumu Chief Magistrate’s Court Land Case No. 24 of 2011, was in favour of the Defendant. A party in whose favour a decision has been rendered has no cause to appeal against it. More fundamentally, it was the Appellant himself who instituted the Originating Summons and prosecuted it to full trial. Having invoked the jurisdiction of the trial court and fully participated in the proceedings, he cannot be heard to complain that the court determined the questions he himself placed before it. That ground fails. 27. The third ground of appeal raises the question of the legality of the sale of 14th December 2007. Section 45(1) of the Law of Succession Act provides: *“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.”* 28. The legal position flowing from this provision is well established. In **Trouistik Union International & Another v Jane Mbeyu & Another [1993] eKLR,** the Court of Appeal affirmed that only a personal representative duly appointed under the Law of Succession Act has the legal capacity to deal with the estate of a deceased person. In **In Re Estate of M’Ngarithi M’Miriti (Deceased) [2017] eKLR,** it was held that intermeddling encompasses any act done by a person in relation to the free property of a deceased person without the authority of any law or a grant of representation, including taking possession, occupation, disposal or distribution of such property. More recently, in **Gichuhi v Muhura & Another; Omega (Interested Party) [2023] KEELC 20905 (KLR),** the Court held that a sale of estate land before confirmation of grant was illegal, null and void, and conveyed no interest to the purchaser. 29. Applying these principles to the present case, there can be no doubt, and indeed the learned trial magistrate expressly so found, that the sale of the suit property to the late Jemima Akinyi Oyare on 14th December 2007 was undertaken before any grant of representation to the estate of the late Nathaniel Adero Odero had been obtained, let alone confirmed. William Odongo Adero and Mildred Akinyi, however well-intentioned, had no capacity in law to dispose of the free property of the deceased. The sale therefore contravened Section 45 of the Law of Succession Act; it was void ab initio and incapable of passing any proprietary interest in the suit property to the purchaser. To that extent, and to that extent only, the Appellant’s third ground of appeal is well founded. 30. I must, however, respectfully part ways with the learned trial magistrate in so far as his judgment may be read as “saving” the sale transaction itself on the authority of **Morris Mwiti Mburugu v Denis Kimanthi M’Mburugu [2016] eKLR.** The equitable considerations discussed by **Mabeya J.** in that case were deployed in the context of a succession cause in which the court was distributing the estate and was in a position to protect an innocent purchaser by carving out the purchased portion with the concurrence of the beneficiaries. They do not, in my respectful view, operate to validate a disposition which the statute declares unlawful, particularly where, as here, the administrator of the estate did not participate in the transaction and the suit property has since been transmitted and registered in his name. The sale remained void notwithstanding its benevolent purpose. 31. That finding, however, marks the beginning and not the end of the inquiry, for the decisive question in this appeal is not whether the sale was void, but what consequences flow from its voidness. Two consequences were urged by the Appellant: first, that the Respondent’s counterclaim, being founded on an illegal transaction, was unenforceable; and secondly, that in any event the refund could not be ordered against him personally, he having neither participated in the sale nor received the purchase price. I will consider each in turn. 32. On the first, the Appellant’s reliance on *Holman v Johnson (supra)* is, with respect, misplaced. The counterclaim which the trial court allowed was not a claim to enforce the void sale agreement. Notably, the trial court did not order the transfer of the suit property to the Defendant, nor did it decree specific performance of the agreement. What the trial court granted was the Defendant’s alternative prayer for a refund of the purchase price, which is a restitutionary remedy founded not on the contract but on the principle of unjust enrichment, an obligation which the law imposes independently of contract. As Lord Wright explained in **Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32,** cited with approval by our courts, any civilized system of law is bound to provide remedies for cases of unjust enrichment, that is, to prevent a man from retaining the money of, or some benefit derived from, another which it is against conscience that he should keep; such remedies are generically different from remedies in contract or in tort and fall within a third category of the common law known as quasi-contract or restitution. 33. The doctrine has long been part of the law of Kenya. In **Chase International Investment Corporation & Another v Laxman Keshra & Others (1978) KLR 143, Madan JA** (as he then was) firmly laid down that in Kenya a claim may properly be founded in restitution where it would be unjust to allow a party to retain the benefits of an unjust enrichment, and expressed the hope that in appropriate cases there would be less smothering of just equitable rights on the basis of technical objections and artificial distinctions oblivious to justice and substance. In **Madhupaper International Ltd & Another v Kenya Commercial Bank Ltd & 2 Others [2003] eKLR, Kuloba J.** identified the three elements which the principle presupposes: that the defendant has been enriched by the receipt of a benefit; that he has been so enriched at the expense of the plaintiff; and that it would be unjust to allow him to retain the benefit. 34. The application of these principles to sales of estate property struck down under Section 45 of the Law of Succession Act is now the subject of a consistent line of authority. In **Stephen Waweru Ng’ang’a v Kimani Ng’ang’a, Nyeri HC P&A No. 1 of 2011, Wakiaga J.** held that a claim for a refund of the purchase price under a void contract is permissible in order to prevent beneficiaries from defrauding innocent purchasers of their money by hiding under the provisions of Section 45. In **Gichuhi v Muhura (supra),** the Court, having declared the sale illegal, null and void, nevertheless ordered the vendor to refund the acknowledged purchase price with interest, precisely because allowing her to keep it would amount to unjust enrichment which a court of equity would frown upon. The same approach commended itself to **Mabeya J. in Morris Mwiti Mburugu (supra).** The principle that emerges is clear: while a purchaser under a void sale of estate property acquires no interest in the land, the law will not permit those who took and enjoyed the purchase money to retain it. The voidness of the sale defeats the conveyance; it does not extinguish the innocent purchaser’s right to restitution. Indeed, the parties were not in pari delicto: the prohibition in Section 45 exists for the protection of estates and their beneficiaries, and it would stand the provision on its head to convert it into an instrument by which a family may keep both the land and the money of a purchaser who dealt with them in good faith. 35. That brings me to the second and, in my view, central question raised by the fourth ground of appeal: whether the refund was properly ordered against the Appellant, who protests that he neither participated in the sale nor received the purchase price. The Appellant’s invocation of the doctrine of privity of contract, on the authority of **Agricultural Finance Corporation v Lengetia Limited (supra),** does not assist him, for the reason already given: the liability imposed on him was not contractual but restitutionary. The true inquiry is whether the three elements of unjust enrichment identified in **Madhupaper (supra)** were established against him. On my own re-evaluation of the evidence, they plainly were. 36. First, as to enrichment, the evidence of DW1, DW2, DW3 and DW4, which the trial court accepted and which was not displaced in cross-examination, was that the sale was a resolution of the Adero family, taken at a moment of acute need; that the purchase price of Kshs. 40,000/= was paid in cash to William Odongo Adero as the representative of the family, in the presence of the Area Assistant Chief; and that the money was applied to bring home and bury the late Tom Odhiambo Adero, the Appellant’s own brother and himself a beneficiary of the estate. The benefit of the money was therefore received by and enured to the family of which the Appellant is a member, in discharge of a family obligation. Secondly, and decisively, the Appellant thereafter, in his capacity as administrator, distributed the estate and allocated the suit property, the very land whose price the Respondent’s mother had paid, to himself, obtaining registration and a title deed on 30th May 2011 while the suit was pending. He thus took the land free of the purchaser, and now seeks to retain it without the family refunding a shilling. Thirdly, DW2, Mildred Akinyi, testified, and was unshaken in cross-examination, that when the Appellant returned from Mombasa after the burial he was briefed about the sale, accepted it and even thanked the purchaser, before later turning against her. Whether or not that acceptance bound him contractually, it speaks eloquently to the injustice of the position he now takes. 37. It was against that background that the learned trial magistrate entered judgment for the refund against the Appellant, and he was careful to specify the capacity in which he did so, namely, in the Appellant’s capacity as the administrator of the estate of the late Nathaniel Adero Odero, and also as the person who has taken the Defendant’s interest in the suit property. I can find no fault in that approach. Section 45(2)(b) of the Law of Succession Act itself renders an intermeddler answerable to the rightful administrator to the extent of the assets intermeddled with; the corollary, where the administrator and the estate’s beneficiaries have had the benefit of the intermeddler’s receipts and the administrator has taken the land to himself, is that restitution to the innocent purchaser is properly channelled through him. He is not, of course, without recourse: nothing prevents the Appellant, in the administration of the estate, from adjusting accounts with William Odongo Adero, Mildred Akinyi or any other beneficiary who handled the money. But as against the Respondent, the Appellant, holding the land, cannot be heard to say that the family’s receipt of the price is none of his concern. To allow the appeal on this ground would be to permit the Appellant to retain both the suit property and, through his family, the purchase price, the very unjust enrichment that the authorities cited above forbid. The fourth ground of appeal accordingly fails. 38. For the same reasons, I find no basis for disturbing the trial court’s dismissal of the Appellant’s claim for a declaration of trespass and a permanent injunction. The Respondent’s mother entered the suit property in December 2007 with the consent and at the invitation of the members of the family then in de facto control of it, paid valuable consideration, and remained in open and peaceful possession thereafter; on the evidence of DW2, the Appellant himself initially acquiesced in the arrangement. Trespass presupposes entry or occupation without any colour of right. A purchaser for value let into possession by the vendor’s family, in circumstances such as these, and protected by a subsisting tribunal award directing that the status quo be maintained pending a refund, is not a trespasser in that sense. In any event, a permanent injunction is an equitable and discretionary remedy, and equity would not lend its aid to eject the purchaser before restitution is made. The trial court’s order that the Defendant retains possession of the suit property until the refund, inclusive of interest, is paid was a just, proportionate and pragmatic order which accords both with the equitable jurisdiction preserved by Section 3 of the Judicature Act and with the command of Article 159(2)(d) of the Constitution that justice be administered without undue regard to technicalities. It also mirrors the alternative limb of the tribunal award adopted in Kisumu CMCC Land Case No. 24 of 2011. I affirm it. The dismissal of the claim for mesne profits was equally sound: the claim was neither pleaded with particularity nor supported by any evidence. 39. As regards the award of interest on the refund at court rates from 14th December 2007, the date of payment, the award of interest is a matter of judicial discretion under Section 26 of the Civil Procedure Act. An appellate court will not interfere with the exercise of a trial court’s discretion unless it is demonstrated that the court misdirected itself, took into account irrelevant matters, failed to take into account relevant matters, or that the decision is plainly wrong: **Mbogo & Another v Shah (1968) EA 93.** No such misdirection has been demonstrated. The refund is restitutionary in character, and interest from the date the money was parted with restores to the Respondent’s estate the time value of money paid out as far back as 2007. That approach was, moreover, consistent with the tribunal award adopted in Kisumu CMCC Land Case No. 24 of 2011, which had itself contemplated a refund of the purchase price together with interest. I decline to interfere. 40. Finally, the Appellant’s submission founded on **Supermarine Handling Services Ltd v Kenya Revenue Authority (supra),** that the awards of costs and interest must fall with the principal decree, does not arise for application. That principle applies where the substantive decision is overturned. The substantive decision here has survived the appeal intact. The costs of the suit awarded to the Defendant, and the taxation thereof at Kshs. 68,095/= vide the Ruling of 26th February 2020, therefore stand undisturbed. **Issue No. (iii): Costs of the appeal** 41. Section 27 of the Civil Procedure Act provides that costs follow the event unless the court, for good reason, orders otherwise: see **Cecilia Karuru Ngayu v Barclays Bank of Kenya & Another [2016] eKLR and Orix Oil (Kenya) Limited v Paul Kabeu & 2 Others [2014] eKLR.** The Respondent has successfully resisted the appeal and is entitled to its costs. **Disposition** 42. In the end, and flowing from the analysis above, the final orders of this Court are as follows: **i. The appeal against the Ruling of the trial court delivered on 21st August 2019 is hereby struck out;** **ii. The appeal against the Judgment of the trial court delivered on 4th December 2019 is hereby dismissed;** **iii. The Judgment of the trial court delivered on 4th December 2019, together with all consequential orders including the Ruling on taxation delivered on 26th February 2020, is hereby affirmed.** **iv. The costs of this appeal are awarded to the Respondent.** It is so ordered. **DATED, SIGNED AND DELIVERED VIRTUALLY AT KISUMU THIS 21ST DAY OF AUGUST 2026.** **E. K. WABWOTO** **JUDGE** **In the presence of: -** **N/A for the Appellant.** **Mr. Mbeka for the Respondent.** **Court Assistant: Joanne Omondi.**