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ELCDismissedNot stated in the judgment provided· [2025] KEELC 4603 (KLR)

Thiga & another v Mburu & 2 others (Sued on Behalf of Amamen Self-Help Group) (Environment and Land Appeal E018 of 2024) (Environment and Land) [2025] KEELC 4603 (KLR)

Environment and Land Court
19 June 2025
MOM.C. Oundo
9,314 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed an administrator's bid to recover estate land he himself secretly sold, holding no one can profit from their own fraud.

What this practically means

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Executive summary

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This was a first appeal to the Environment and Land Court at Naivasha against the judgment of Hon. Abdulqadir Lorot H.R, Chief Magistrate, delivered on 9th December 2024, dismissing the appellants' suit. The suit property, LR Naivasha/Mwichiringiri Block 4/1149, originally belonged to George Thiga Ngamate (deceased 2008). Before any grant of administration issued, the land was transferred to the 1st Respondent in 2014 and sold to the 2nd Respondent in January 2016, after which it was charged to a bank. The appellants, administrators and beneficiaries of the estate, sought re-transfer of the title to the estate pending the conclusion of succession proceedings. The trial court dismissed the suit, finding the 1st Appellant had participated in the sale. On appeal, the appellants raised twelve grounds, including alleged bias, unequal standards of proof, disregard of High Court authorities against alienation of estate property before confirmation of grant, and failure to consider the 2nd Appellant's separate interests. The Respondents maintained that the 2nd Respondent was a bona fide purchaser for value under Section 26 of the Land Registration Act and that the 1st Appellant, an advocate, instigated, facilitated and benefited from the sale, sharing proceeds of Kshs. 753,000/= each with his brothers. Justice Oundo accepted that dealing with estate property without a grant constitutes intermeddling rendering the sale void or voidable, but found that the 1st Appellant instigated and orchestrated the fraud. Applying ex turpi causa non oritur actio and the clean hands doctrine, the court held he could not benefit from his own wrongdoing. The appeal was dismissed with costs.

Key legal issues

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01

Whether the trial Magistrate erred in finding that the transfer and sale of the suit property was not available for the Plaintiff to impugn

Holding

The appeal was dismissed; the trial court's findings were upheld

Reasoning

The court held that although the initial dealing with estate property without a grant was intermeddling and void, the 1st Appellant, an advocate and custodian of titles, instigated and orchestrated the fraudulent transfer and sale, received and spent Kshs. 753,000/- of the proceeds, and therefore could not invoke the court's aid under ex turpi causa non oritur actio and the clean hands doctrine. The 2nd Respondent was found to be an innocent purchaser.

p. 15
02

Whether allowing the appeal would offend public policy

Holding

Yes; the court declined to assist a party to recover property from a fraudulent transaction he initiated

Reasoning

Allowing the appellant to recover land he fraudulently orchestrated to sell would encourage fraudulent behaviour, undermine the integrity of land transactions, and make a mockery of the legal system, which aims to deter fraud rather than enable fraudsters to reverse inconvenient transactions.

p. 16

Legal principles established

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  • A plaintiff cannot pursue a cause of action founded on his own illegal or fraudulent act (ex turpi causa non oritur actio / clean hands doctrine)
  • A first appellate court must reconsider, re-evaluate and draw its own conclusions on the evidence
  • Dealing with a deceased person's property without a grant constitutes intermeddling and renders the transaction void or voidable

Court orders

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  1. 1.The appeal is dismissed with costs to the Respondents; the judgment of the trial Magistrate delivered on 9th December 2024 dismissing the Plaintiff's suit is upheld

Authorities

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Legislation

  • Law of Succession ActSection 45
  • Land Registration ActSection 26
  • Constitution of KenyaArticles 49, 50 and 51
  • Civil Procedure ActSection 78

Cases cited (7)

  • Paramount Bank Limited v First National Bank Limited & 2 Others
    (Civil Appeal 468 of 2018) [2023] KECA 1424 (KLR)
  • Wambui v Mwangi & 3 others
    (Civil Appeal 465 of 2019) [2021] KECA 144 (KLR)
  • In re Estate of Barasa Kanenje Manya (Deceased)
    (Succession Cause 263 of 2002) [2020] KEHC 1 (KLR)
  • Kibiro Wagoro Makumi v Francis Nduati Macharia & another
    [2018] KEELC 4102 (KLR)
  • Alice Chemutai Too v Nickson Kipkurui Korir & 2 others
    [2015] KEELC 151 (KLR)
  • Mistry Amar Singh v Serwano Wofunira Kulubya
    [1963] EA 408
  • Scott v Brown, Doering, McNab & Co
    [1892] 2 QB 724
On appeal from
Chief Magistrate's Court at Naivasha
Naivasha CMCELC No. 20 of 2018 (Formerly Nakuru ELC Case No. 468 of 2016)
Jurisdiction invoked
First appellate jurisdiction over the Chief Magistrate's Court (ELC appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Thiga & another v Mburu & 2 others (Sued on Behalf of Amamen Self-Help Group) (Environment and Land Appeal E018 of 2024)  (Environment and Land) [2025] KEELC 4603 (KLR)", Case Analysis (2025). Not stated in the judgment provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4603/eng@2025-06-19

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.