Kiama & another v Wanjau & another (Environment and Land Appeal E018 of 2025) [2026] KEELC 5315 (KLR)
The bottom line
#Kenyan land buyers who paid in full and moved in can keep their land through a constructive trust, even if the sale contract was legally void.
What this practically means
#Executive summary
#Key legal issues
#Validity of agreements selling land of a deceased person before confirmation of grant
The agreements were null and void as intermeddling under sections 45(1) and 82(b)(ii) of the Law of Succession Act
The 1st Respondent admitted selling portions of LR Githi/Muthambi/830 while it was still registered in his late father's name and before confirmation of grant. Section 45(1) prohibits intermeddling with free property of a deceased person, and Section 82(b)(ii) prohibits sale of immovable property before confirmation of grant. The Trial Court was therefore right that the agreements were a nullity.
Whether a constructive trust arose in favour of the purchasers despite the void contracts
Yes - the 1st Respondent, having sold, received the purchase price and settled the Appellants on the land, holds his interest in trust for them; equity will not allow him to invoke intermeddling to defeat their rights
Relying on Kitilit v Kibet and Macharia Mwangi Maina, the court held that Article 10(2)(b) elevates equity to a binding national value, and a constructive trust arises where a seller accepts the purchase price and grants possession, even absent formal registration or where consent is lacking. Statutes cannot be used as an engine of fraud. The 1st Respondent settled the Appellants on his sister's inherited portion through silence before the Succession Court.
Whether the Appellants were entitled to compensation of Kshs.7,700,000/= for developments (unjust enrichment)
Restitution is due in principle, but the efficacious remedy chosen was rectification of the register and carving out of the purchased portions, not monetary refund or compensation
Citing Mutua v Maingi and Ndungu v Ruigu, the court affirmed that equity frowns on unjust enrichment and restitution is available despite a void contract. However, refund or compensation would require valuations and was not efficacious; rectification of the register so the Appellants keep their developed portions was the appropriate restitutionary remedy.
Eviction counterclaim by the 2nd Respondent
The counterclaim ought to have been dismissed; the Appellants will not be evicted following the rectification and trust declaration
Having found a constructive trust in favour of the Appellants and ordered rectification swapping the parcels so the 2nd Respondent enjoys her inheritance elsewhere, the Appellants' continued occupation of their purchased portions is lawful. The Trial Court erred in granting eviction of the 1st and 3rd Plaintiffs.
Improper second Memorandum of Appeal filed without leave
The Memorandum of Appeal dated 12th June 2025 was struck out and expunged as it was filed after directions under Order 42 Rule 13 without leave
Order 42 Rule 3 permits amendment of a memorandum of appeal without leave only before directions under Rule 13. Directions had already been given, so the second memorandum filed without leave was improperly on record.
Legal principles established
#- A void or illegal contract does not leave the injured party without recourse; equity affords restitution and constructive trust to prevent unjust enrichment
- Equitable doctrines such as constructive trust and proprietary estoppel possess constitutional weight under Article 10(2)(b) of the Constitution and must be actively applied
- A seller who accepts the full purchase price and grants possession creates a constructive trust even where the transaction is void for want of statutory consent
- The court may order rectification of the register under Section 80 of the Land Registration Act where a registration was obtained, made or omitted by fraud or mistake
Court orders
#- 1.The Memorandum of Appeal dated 12th June 2025 is struck out and expunged from the record
- 2.The Land Register is ordered to be rectified under Section 80 of the Land Registration Act Cap 300 to reflect that Githi/Muthambi/2305, confirmed and registered to the 2nd Respondent, be registered in the name of the 1st Respondent, and that LR Githi/Muthambi/2304 be registered in the name of the 2nd Respondent as her inheritance
- 3.After the said rectification, the 1st Respondent's interest in Githi/Muthambi/2305 be held in trust for the Appellants, and subsequently the Appellants' portions be carved out, and the Land Registrar is directed to issue titles in their favour in accordance with the acreage they purchased
- 4.Costs of the appeal and in the Lower Court to be borne by the 1st Respondent
- On appeal from
- Principal Magistrate's Court, Mukurwe-ini
- Mukurwe-ini PMC ELC Case No. E008 of 2021
- Jurisdiction invoked
- First appeal from the Principal Magistrate's Court under the Civil Procedure Act and Order 42 of the Civil Procedure Rules; rectification powers under Section 80 of the Land Registration Act Cap 300
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kiama & another v Wanjau & another (Environment and Land Appeal E018 of 2025) [2026] KEELC 5315 (KLR)", Case Analysis (2026). NYERI ELCA E018 OF 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5315/eng@2026-08-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.