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)

4. In response to the suit, the Appellant filed a Statement of Defence and Counterclaim alleging that the suit was unmaintainable as the Respondent sought to advance an illegal claim contrary to section 45 and 82 of the Law of Succession Act. She denied that there was any property capable f being transacted by the parties hence no contract could be inferred from such dealings. She further stated that the suit property had never belonged to the Joel Ng’ang’a Kamau deceased and that the deceased lacked the capacity to deal with the same. She thus denied that there was any agreement between the parties, capable of being performed. 5. In his Counterclaim the Appellant alleged that the Respondent had on or about the 19th day of April 2021 unlawfully and without any justifiable cause trespassed onto the Appellant’s homestead and land known as Ngenda/Githunguri/2836 and remained thereon even after being asked to vacate thus denying the Appellant full enjoyment of the same by registering a caution thereon. 6. The Appellant thus sought special damages and general damages against the Respondent. She also sought a permanent injunction restraining the Respondent from interfering with the suit property and an order that the caution registered against land parcel number Ngenda/Githunguri/2836 be lifted by the land Registrar, Gatundu. Additionally, she prayed for costs of the suit and Counterclaim. 7. After hearing both parties, the trial Magistrate rendered his judgment in which he held that the transaction between the parties was illegal as per the Law of Succession Act. Nevertheless, he ordered that the Appellant refunds the Respondent the purchase price together with interest at 20% from the estate of Joel Ng’ang’a Kamau (deceased) within a period of six months failure to which execution would ensue. 8. It is against the said judgment that the Appellant filed the instant appeal citing various Grounds of Appeal as set out in the Memorandum of Appeal. 9. This being a first appeal section 78 of the Civil Procedure Act mandates this court to re-evaluate, reassess and re-consider the evidence that was adduced before the trial court and arrive at its own findings. 10. In the case of Selle and Another v Associated Motor Boat Company Ltd & Another (1968) EA 123, the court held as follows: “ This court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court is by way of a re-trial and the principles upon which this court acts in such an appeal are well settled. Briefiy put they are that this court must reconsider the evidence re-evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.” Analysis and Determination 11. Having carefully considered the judgment, the Grounds of Appeal, the entire proceedings as well the submissions of both the Appellant and the Respondent, the following issues arise for determination. i. Whether the judgment of the trial court was ambiguous and contradictory. ii. Whether the trial magistrate failed to consider the Appellant’s Counterclaim iii. Whether the appeal ought to succeed. iv. Who should bear the costs of the appeal? https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1646/eng@2026-02-09 2

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12. In his judgment the trial Magistrate held that the transaction between the Appellant and the Respondent was illegal as the purported sale was contrary to the provisions of section 45 of the Law of Succession Act which prohibits intermeddling with the property of a deceased person. 13. Section 45 of the Law of Succession Act reads as follows: No intermeddling with the property of deceased person “ Except so far as expressly authorized by this Act or any other written law, or by a grant of representation under this Act, no person shall for any purpose, take possession or dispose of, or otherwise intermeddle with any free property of a deceased person.” 14. Section 55 states that: No distribution of capital before Confirmation of Grant 1. 15. No grant of representation whether or not limited in its terms shall confer power to distribute any capital assets, or to make any division of property, unless and until the grant has been confirmed as provided in section 71. Section 71 provides as follows: Confirmation of Grants 1. 16. After the expiration of a period of six months, or such shorter period as the court may direct under subsection (3), from the date of any grant of representation, the holder thereof shall apply to the court for confirmation of the grant in order to empower the distribution of any capital assets. Section 82 provides: “ Powers of personal representatives Personal representatives shall, subject only to any limitation imposed by their grant, have the following powers— 17. (a) to enforce, by suit or otherwise, all causes of action which, by virtue of any law, survive the deceased or arising out of his death for his personal representative; (b) to sell or otherwise turn to account, so far as seems necessary or desirable in the execution of their duties, all or any part of the assets vested in them, as they think best:Provided that — (i) any purchase by them of any such assets shall be voidable at the instance of any other person interested in the asset so purchased; and (ii) no immovable property shall be sold before confirmation of the grant;” The import of the foregoing provisions is plain. Section 45 and 55 of the Law of Succession Act proscribes intermeddling with a deceased’s estate and distribution of capital before confirmation of grant, while Sections 71 and 82(b)(ii) withhold any authority to dispose of immovable property prior to the confirmation of grant. Any transaction undertaken in breach of these mandatory provisions is, in law, void for illegality. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1646/eng@2026-02-09 3

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18. It is against this statutory backdrop that the Appellant contends that the trial court, having correctly found the impugned transaction to be unlawful, could not thereafter proceed to grant reliefs fiowing from it. 19. Learned counsel for the Appellant submits that, having found the transaction to be illegal, the trial court was thereby divested of any basis upon which to grant relief to the Respondent. In particular, it is contended that the court could not, in the face of such illegality, properly order the refund of the purchase price, let alone award interest thereon and costs of the suit. 20. In that regard, counsel drew the Court’s attention to Hussein Ladha v Haresh Soni [2017] KEHC 724 (KLR), where the Court spoke in unmistakable terms on the limits of judicial intervention in the face of statutory illegality. It was therefore held that a court, being itself a creature of statute, cannot lend its authority to the enforcement of a contract that is founded upon the breach or circumvention of the law. The Court underscored that to do so would not only defeat the purpose of the statute in question, but would erode the very function of the judicial process as a safeguard of legality, ultimately declining to assist a party whose cause of action arose ex turpi causa. 21. Counsel further relied on Kenya Airways Limited v Satwant Singh Flora [2013] eKLR, where the Court reafirmed the enduring maxim ex turpi causa non oritur actio, observing that no court ought to enforce an illegal contract or permit itself to be used as an instrument for the enforcement of obligations arising from such illegality. The Court emphasized that once illegality is brought to its attention, it is immaterial whether it has been pleaded, and that a party implicated in the illegality cannot invoke the Court’s aid. Drawing from allied authorities, including Heptulla v Noormohamed [1984] KLR 58, the Court reiterated that illegality, once established, is fatal to the enforceability of the contract. 22. The foregoing position was contested by counsel for the Respondent. While conceding the finding that the transaction was tainted by illegality, counsel for the Respondent submits that the trial court nonetheless properly exercised its discretion in ordering a refund. It is contended that the Respondent was an innocent purchaser who paid valuable consideration in good faith for property that could not lawfully be transferred. In those circumstances, counsel argues that to deny restitution would be to permit the Appellant to retain the benefit of the Respondent’s payment without any corresponding obligation, thereby resulting in unjust enrichment. The order for refund, it is submitted, does not validate the illegality but merely restores the parties to their pre-transaction positions in a manner that accords with equity and justice. 23. Counsel for the Respondent placed reliance on a plethora of authorities which I have considered including: Bedan Nagi Ngano v Phylis Grace Karimi & another [2010] eKLR; In re Estate of Johana Nyaga (Deceased) [2018] eKLR; In re Estate of Murira Karigicha (Deceased) [2018] eKLR; National Bank of Kenya Ltd v Pipeplastic Samkolit (K) Ltd & Another [2001] eKLR. 24. Counsel for the Respondent urged the Court to draw guidance from the foregoing authorities, which, it was submitted, recognize the Court’s equitable jurisdiction to order restitution even where a transaction is otherwise tainted by illegality, particularly in circumstances where one party has received and retained a benefit without consideration. It was argued that such an order does not ofiend the doctrine of illegality, but rather operates to prevent unjust enrichment and to ensure that a party does not profit from a transaction that the law itself cannot sustain. Counsel therefore maintained that the learned trial Judge was correct to order a refund, as this merely restored the parties to their original positions and did not amount to enforcement of an illegal contract. 25. The Court has given due consideration to the rival submissions. A court of justice cannot lend its hand to the enforcement of an illegal transaction, nor permit its processes to be invoked in aid of a right that https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1646/eng@2026-02-09 4

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springs from an unlawful act. Where illegality is established, it does not merely colour the transaction; it strikes at its root and renders it incapable of producing any enforceable legal consequences. 26. It was urged, by the Respondent, that the order for refund was an exercise of equity, designed to prevent unjust enrichment. That submission, however, cannot prevail. Equity, like the law itself, operates within defined bounds. It cannot be summoned to breathe life into that which the law has already condemned. To hold otherwise would be to allow the Court, under the guise of fairness, to perform indirectly what it is forbidden to do directly. 27. The refund ordered by the trial court is not a neutral act of restitution divorced from the impugned transaction. It is, in substance, a recognition and partial validation of a bargain which the law declares void. 28. The Court cannot, without contradiction, pronounce a transaction illegal and yet proceed to give efiect to its financial consequences as though it were lawful. That path leads not to justice, but to confusion of principle and erosion of the statute. 29. The proper course, in these circumstances, is to uphold the primacy of the law and to decline any relief that fiows from an illegal foundation. The trial court, with respect, strayed from that course. 30. The Court now turns briefiy to the claim in trespass which arises from the Appellant’s counterclaim and has been considered against the record. The Court has examined the evidence and the applicable law. The concept is well settled in both text and authority. Black’s Law Dictionary (10th Edition) defines trespass as: “ an unlawful act committed against the person or property of another; especially wrongful entry on another’s real property.” 31. Clerk & Lindsell on Torts (18th Ed) similarly defines it as: “ any unjustifiable intrusion by one person upon the land in possession of another.” 32. In Duncan Nderitu Ndegwa v Kenya Power & Lighting Company Limited & Another [2013] eKLR, the Court afirmed that trespass is actionable per se, and that once established, no proof of damage is required. 33. The Appellant’s case, however, falters at the evidentiary threshold. In her testimony during the crossexamination, she expressly conceded that upon requesting the Respondent to vacate the suit property, the Respondent complied and left. No evidence was placed before the Court of any continued occupation, refusal to vacate, or subsisting interference with possession. 34. In the absence of proof of unlawful entry or continued presence, the essential ingredients of trespass are not established. The claim therefore fails. 35. These findings dispose of the matter in its entirety. 36. Accordingly, the appeal is allowed. The judgment and decree of the trial court are hereby set aside. The orders for refund, interest, and costs are vacated. Each party shall bear its own costs, and the Respondent shall be at liberty to pursue any claim for recovery of the purchase price in accordance with the law. DATED, SIGNED AND DELIVERED VIRTUALLY AT THIKA THIS 9TH DAY OF FEBRUARY, 2026. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1646/eng@2026-02-09 5

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................................ J. M. ONYANGO JUDGE In the presence of: Mr. Tumu for the Appellant. No appearance of the Respondent. Court Assistant: Hinga. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1646/eng@2026-02-09 6

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