Unibee Construction Limited v Lorot & another (Suing as the Legal Administrator of the Estate of Lomerinyang Chepsien) (Environment and Land Appeal 24(B) of 2024) [2025] KEELC 4721 (KLR)
The bottom line
#A Kenyan construction company must pay Kshs. 5.7 million because it relied on a land agreement signed by someone with no legal authority over a deceased person's estate.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.If the respondents proved that the appellant had trespassed into or encroached on the suit land without justification, consent, or approval of their late father
- 2.If the agreement between the appellant and DW2 dated 23/2/2018 was binding in law, enforceable and was enough justification for the appellant to enter the suit land, excavate and remove murram and stones
- 3.If the respondents pleaded and proved trespass and encroachment of the suit land by the appellant
- 4.If the respondents were entitled to the reliefs sought at the lower court
- 5.If the appeal has merits
- 6.What is the order as to costs
Key legal issues
#Whether the respondents, as legal representatives of the deceased's estate, proved trespass by the appellant
Yes. The suit land vested in the respondents upon the grant of letters of administration; the appellant's entry under an agreement with a non-representative beneficiary amounted to intermeddling and trespass.
The deceased died in May 2015 and the estate, including the suit land, devolved on the respondents under the grant. DW2 was only a beneficiary who received 7 acres upon confirmation in 2019, after the April 2018 excavation. Dealing with the property otherwise than through the personal representatives was intermeddling. The entry, excavation and quarrying were admitted, which suffices for liability in trespass.
Whether the agreement dated 23/2/2018 between DW2 and the appellant was binding and enforceable
No. It was a nullity ab initio and, in any event, defective for want of proper execution.
The agreement was not signed by the legal representatives of the estate; it did not define the suit land or DW2's capacity; it was signed by a site agent not shown to have authority, and not in the manner required under Section 35 of the Companies Act, 2015. A beneficiary cannot arrogate to himself powers over undistributed estate property.
Whether the award of Kshs. 5,700,000/= general damages was justified
Yes. The valuation report was unchallenged by any counter report, and the appellant failed to undertake its statutory restoration obligations under EMCA, aggravating the loss.
Expert evidence is not binding per se, but a party attacking it must lay a basis for its unreliability. The appellant produced no EIA or NEMA reports and no rebuttal valuation, despite having the tender documents and payment records in its custody. Failure to rehabilitate the quarry site rendered the land unusable and supported general damages for loss, waste and damage.
Whether the decrees in Kitale ELC No. 9 of 2012 and the confirmed grant bound the appellant
Yes. The unchallenged decrees and grant bound the trial court and, through DW2 and estoppel, the appellant, though it was not a party to them.
The High Court decree restraining DW2 from interfering with the subdivision had never been appealed or reviewed. The confirmed grant of 18/7/2019 allocated DW2 only 7 acres. DW2 and those claiming through him are estopped from contradicting the certificate of grant and the decree of a court of competent jurisdiction.
Legal principles established
#- Any agreement entered into by a person who does not represent the estate of a deceased person is a nullity ab initio and cannot be sanctioned by a court of law
- Trespass is actionable per se without proof of specific loss or damage
- A first appellate court must re-assess, re-analyse and re-hear the record and reach its own findings while giving credit to the trial court's advantage of seeing and hearing witnesses
- A court cannot sit on appeal on findings and decisions of a court of concurrent jurisdiction; unchallenged decrees bind the parties and those claiming through them
- An agreement to be binding on a company must be signed by a director and endorsed with the company seal
Court orders
#- 1.The appeal is dismissed
- 2.The judgment of the trial court dated 4/7/2023 awarding Kshs. 5,700,000/= general damages for trespass, permanent injunction and costs is affirmed
- 3.Costs of the appeal to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrates' Court (trial court)
- Jurisdiction invoked
- First appellate jurisdiction under the Civil Procedure Act over the trial court's judgment dated 4/7/2023
Relief refused
#Appellant's prayer to disturb the award of Kshs. 5,700,000/= general damages
No counter valuation report or expert evidence was produced to rebut the respondents' valuation; the award was commensurate to the loss suffered
Appellant's contention that the suit land belonged to DW2 and that the agreement dated 23/2/2018 was binding
The land belonged to the deceased's estate; DW2 was not a legal representative and the agreement was a nullity ab initio
Costs
Appeal dismissed with costs to the respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
It is trite law that any agreements entered between parties who do not represent the estate of a deceased is a nullity ab initio.
Trespass is a tort that is actionable per se without proof of any injury, loss, or damage.
The upshot is I find the appeal lacking merits. It is dismissed with costs.
Guided by the foregoing case law, I find no basis to disturb the award of Kshs. 5,700,000/= as general damages, more after the respondents raised the claim on time when the appellant ignored it.
Anyone dealing with the deceased property except the respondents bordered with intermeddling with the estate of the deceased.
A court of law cannot sanction an illegality. The agreement dated 23/2/2018 was not signed by the respondents.
Issues in the judgment
#Inconsistent dates given for the grant of letters of administration - described variously as dated 14/1/2016, issued in favor of the respondents on 14/7/2016, and dated 19/1/2016
Inconsistent dates given for the decree in Kitale ELC No. 9 of 2012 - referred to as dated 20/1/2015, 29/1/2015, and 'order dated 20/1/20215'
The judgment is that of a first appellate court delivered in the Environment and Land Court but the Memorandum of Appeal, trial court and parties' roles are described inconsistently with typical first-instance framing; the appellant is identified as 'the defendant at the lower court' while at paragraph 40 the appellant's own director is described as 'the director of the respondent'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Unibee Construction Limited v Lorot & another (Suing as the Legal Administrator of the Estate of Lomerinyang Chepsien) (Environment and Land Appeal 24(B) of 2024) [2025] KEELC 4721 (KLR)", Case Analysis (2025). ELC Appeal No. E008 of 2023 (formerly Kitale ELC suit arising from plaint dated 18/2/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4721/eng@2025-06-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.