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ELCDismissedKakamega MCELC Case No. 502 of 2018 (Appeal)· [2026] KEELC 5114 (KLR)

Tungani v Tungani & 3 others (Environment and Land Appeal E038 of 2024) [2026] KEELC 5114 (KLR)

Environment and Land Court
22 July 2026
5,047 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court ruled that a family who fraudulently sold deceased's land cannot cancel the buyers' titles to reclaim it.

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 Kakamega against the judgment of Hon. J.R. Ndururi, SPM, delivered on 27th June 2024 in Kakamega MCELC Case No. 502 of 2018. The trial court had found that land parcel Butsotso/Shikoti/1004, registered in the name of the deceased Dismas Tungani Manyasa, was transferred to the 1st respondent and subdivided into parcels 16601-16605, 18607 and 18608 before succession proceedings, rendering the transactions illegal, null and void ab initio; but it dismissed the plaintiffs' claim because the appellant (the 2nd plaintiff) and the 1st respondent authored the illegality, and allowed the 2nd respondent's counterclaim restraining interference with parcel 16602. The appellant's four grounds complained that the trial court could not decline to cancel titles it had found illegal, that it wrongly preserved one such title by permanent preservative order, and that the judgment was contradictory. The ELC, per A. Nyukuri J, re-evaluated the evidence as a first appellate court. It accepted that the sales contravened sections 45 and 82 of the Law of Succession Act, but held that the appellant and his family were themselves the perpetrators of the fraud, having sold the land, received the purchase price, and endorsed the transactions, then reneged to defeat the purchasers. Equity, Article 10(2)(b), and Article 159 of the Constitution bar a fraudulent seller from invoking Article 40 and section 26 of the Land Registration Act against good-faith purchasers, since that would amount to unjust enrichment. The appellant and his family were estopped from reneging. The appeal was dismissed with costs to the 2nd, 3rd and 4th respondents.

Key legal issues

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01

Whether titles procured before succession, though illegal, should be cancelled where the appellant himself authored the illegality

Holding

No; equity and the Constitution prevent a perpetrator of fraud from benefiting from his own wrongdoing, so the trial court properly declined to cancel the titles

Reasoning

The court found the appellant and his family sold the suit property to the 2nd to 4th respondents, received consideration, placed them in possession, and later reneged to defeat the purchasers. Although sections 45 and 82 of the Law of Succession Act rendered the sales unlawful, the constitutional and statutory protections of property and indefeasible title protect bona fide owners, not fraudulent sellers. Applying them for the appellant would produce unjust enrichment, contrary to the constitutional value of equity under Article 10(2)(b).

p. 29
02

Whether the appellant and his family were estopped from challenging the transactions

Holding

Yes; having voluntarily sold the land and allowed the purchasers to obtain titles and possession, they are estopped from reneging

Reasoning

The evidence showed the 1st respondent sold land to the 2nd and 3rd respondents in transactions witnessed and endorsed by the appellant, his mother and other family members, on the basis of a family appointment letter dated 30th April 2012. The 4th respondent bought from the appellant himself. The court held the family hatched a scheme to defraud the purchasers and were estopped from reneging on the transactions.

p. 28

Legal principles established

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  • A party who sells property through his own fraud and illegality and then reneges cannot invoke constitutional protection of property and indefeasibility of title against good-faith purchasers, as that would amount to unjust enrichment.
  • The duty of a first appellate court is to re-evaluate and re-analyse the evidence and reach its own conclusions while allowing for the absence of an opportunity to see or hear witnesses.

Court orders

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  1. 1.Appeal dismissed
  2. 2.Costs of the appeal awarded to the 2nd, 3rd and 4th respondents
On appeal from
Senior Principal Magistrate's Court, Kakamega
Kakamega MCELC Case No. 502 of 2018
Jurisdiction invoked
First appellate jurisdiction over appeals from magistrates' courts in land matters

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, "Tungani v Tungani & 3 others (Environment and Land Appeal E038 of 2024) [2026] KEELC 5114 (KLR)", Case Analysis (2026). Kakamega MCELC Case No. 502 of 2018 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5114/eng@2026-07-22

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