Lunani v Oyatsi
The bottom line
#The Court of Appeal upheld a land buyer's title, ruling that challenges to a deceased's estate must be raised in succession proceedings, not later lawsuits.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.The validity of the land sale agreement between Lambert Obuyu Lunani and the Respondent
- 2.Whether the Respondent proved his counterclaim on a balance of probabilities
- 3.Whether the trial was fair and procedural
Key legal issues
#Validity of the 3 December 1988 land sale agreement and the Respondent's title
Even if the sale agreement was invalid, the declaration of the Respondent's interest in the succession proceedings and confirmation of the grant made reliance on the agreement legally otiose; the registration process through the succession proceedings and Land Control Board consent was lawful.
The Appellant's father declared the Respondent's beneficial interest in the succession proceedings, contingent on his own interest in the estate. The other four direct beneficiaries were privy to the proceedings and raised no objections. After confirmation of the grant, Land Control Board consent was obtained and the Respondent was duly registered. Any defect in the 1988 agreement was therefore cured by the succession process.
Collateral attack on succession proceedings
The Appellant, having not objected in the succession proceedings, cannot overturn them by instituting a suit in the Environment and Land Court.
The proper forum for challenging the inclusion of the Respondent as a beneficiary was an objection within the succession cause. No such objection was raised. A party cannot circumvent that process by a collateral attack in a different forum seeking cancellation of titles flowing from a confirmed grant.
Whether the Respondent proved his counterclaim on a balance of probabilities
The challenge to proof of the sale agreement was not determinative given the court's conclusions on the legal place of the agreement in relation to the succession proceedings.
The Appellant argued the agreement was suspicious because of the writing style and the sole witness being the Respondent's father. However, since the court held that reliance on the agreement was otiose given the declaration of the Respondent's interest in the succession proceedings, the evidential questions about the agreement could not determine the case.
Whether the Appellant was afforded a fair hearing contrary to Articles 50 and 159 of the Constitution
The fair hearing claim was groundless: the Appellant was given directions and indulgences to file submissions but did not comply, and the COVID-19 pandemic had not even been declared at the relevant time.
The record showed the trial court gave each party 21 days to file and exchange submissions, set mentions to confirm compliance, and indulged a request for a further 14 days. The Appellant's advocate did not comply or attend. The pandemic had not been declared by the time of the non-compliance, so the Article 50 claim rested on quicksand.
Legal principles established
#- A party who did not object to the inclusion of a beneficiary's interest in succession proceedings cannot mount a collateral attack on those proceedings by instituting a suit in the Environment and Land Court.
- On a first appeal the Court must reconsider and evaluate the evidence itself while making due allowance for not having seen or heard the witnesses.
- A litigant who is afforded a fair opportunity to be heard but fails to take it cannot later claim a violation of the right to a fair hearing.
Court orders
#- 1.The appeal is dismissed with costs to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Busia
- Busia Environment and Land Case No. 129 of 2020
- Jurisdiction invoked
- First appeal to the Court of Appeal under the applicable appellate framework; the judgment characterises the matter as 'a first appeal'
Relief refused
#The Appellant's appeal in its entirety, including cancellation of the Respondent's registration as owner of the suit property
The Appellant's father sold part of his share of the estate to the Respondent; the interest was declared in succession proceedings and no objection was raised there
Costs
The appeal is dismissed with costs to the Respondent
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.
Having considered, re-evaluated and analysed the proceedings before the superior court, the appeal and submissions, the Court finds no merit in the appeal, and it is dismissed with costs to the Respondent.
Since no such objection was raised, the Appellant cannot be allowed to mount a collateral attack and attempt to overturn the succession proceedings by instituting a suit in the Environment and Land Court.
If at all, the sale agreement of 3 December 1988 was invalid, then the inclusion of the Respondent's interest in the succession proceedings made reliance on the agreement legally otiose.
He was afforded a fair chance, but he snubbed the opportunity.
This court must reconsider the evidence, evaluate it itself, and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses
Issues in the judgment
#Inconsistent case number for the ELC suit within the judgment
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lunani v Oyatsi", Case Analysis (2026). Civil Appeal E006 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2018/eng@2026-06-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.