Ng’ang’a (Sued in Her Own Capacity and as the Personal Representative of the Estate of the Late Joel Ng’ang’a Kamau) v Nginga (Environment and Land Appeal E069 of 2023) [2026] KEELC 1646 (KLR)
The bottom line
#Kenya's High Court confirmed that buying land from a deceased person's estate before a grant is confirmed is illegal, and courts will not refund your money.
What this practically means
#Executive summary
#Key legal issues
#Effect of illegality on the trial court's refund order
The trial court erred in finding the sale illegal yet ordering a refund with interest; relief flowing from an illegal foundation must be declined
Sections 45, 55, 71 and 82(b)(ii) of the Law of Succession Act prohibit intermeddling with a deceased's estate and disposal of immovable property before confirmation of grant. The trial court found the sale void for illegality but then ordered the estate to refund the purchase price with 20% interest. The appellate court held this was a partial validation of a void bargain; equity cannot operate within the bounds of what the law has condemned, and the court must decline relief flowing from an illegal foundation.
Appellant's counterclaim in trespass
Trespass claim fails for want of evidence of unlawful entry or continued presence
Trespass is actionable per se (Duncan Nderitu Ndegwa v Kenya Power & Lighting Co Ltd). However, the Appellant conceded in cross-examination that the Respondent complied with her request to vacate. With no proof of continued occupation or subsisting interference with possession, the essential ingredients of trespass were not established and the counterclaim fails.
Duty of first appellate court
Section 78 of the Civil Procedure Act obliges the first appellate court to re-evaluate and re-assess the evidence
Citing Selle v Associated Motor Boat Co Ltd, the court reiterated that an appeal to it is by way of re-trial: it must reconsider the evidence, re-evaluate it and draw its own conclusions, while making due allowance for not having seen or heard the witnesses.
Legal principles established
#- A transaction in breach of the prohibitions in sections 45, 55, 71 and 82 of the Law of Succession Act is void for illegality
- Equity cannot be invoked to give effect to consequences of a transaction the law declares void
- Trespass is actionable per se but the claimant must still prove unlawful entry or continued presence
Court orders
#- 1.The appeal is allowed
- 2.The judgment and decree of the trial court are set aside
- 3.The orders for refund, interest, and costs are vacated
- 4.Each party shall bear its own costs
- 5.The Respondent shall be at liberty to pursue any claim for recovery of the purchase price in accordance with the law
- On appeal from
- Gatundu Magistrate's Court (Environment and Land)
- E & L Case No. 027 of 2019
- Jurisdiction invoked
- Section 78 of the Civil Procedure Act (first appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ng’ang’a (Sued in Her Own Capacity and as the Personal Representative of the Estate of the Late Joel Ng’ang’a Kamau) v Nginga (Environment and Land Appeal E069 of 2023) [2026] KEELC 1646 (KLR)", Case Analysis (2026). Gatundu Magistrate's Court E & L Case No. 027 of 2019 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1646/eng@2026-02-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.