Giesen v Wamukowa (Environment and Land Appeal E007 of 2023) [2025] KEELC 4627 (KLR)
The bottom line
#A Kenyan court ruled that a person who cannot legally sell inherited land must refund the buyer's money, even though the sale itself was void.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the sale agreements dated 8th September 2018 and 15th October 2019 were valid contracts
- 2.Whether upon finding that the respondent was paid a consideration of Kshs. 500,000/= by the appellant for purchase of 1¼ acres of land from parcel No. Marama/Shinamwenyuli/1333, the trial court was wrong in concluding that the appellant was not entitled to the prayer for specific performance or the alternative prayer for refund of the consideration on the basis that the sale agreements were null and void
Key legal issues
#Validity of the sale agreements where the land was registered in the name of a deceased person
The agreements were void because the respondent had no confirmed grant and thus no capacity to sell
The court reiterated that a party to a land sale must be the lawful owner or hold a confirmed grant where the land is registered in a deceased's name. Section 82(b)(ii) of the Law of Succession Act forbids sale of immovable property before confirmation of grant. The respondent sold in 2018 and 2019 without a confirmed grant (succession finalized 2019, title obtained December 2021), so the transactions were void and the contracts invalid.
Whether the appellant was entitled to refund of the purchase price despite the agreements being void
Yes; the respondent who received Kshs. 500,000/= in a void transaction cannot lawfully retain it, as that would unjustly enrich her
The court held that lack of capacity to sell does not confer capacity to keep money received under the invalid transaction. Dismissing the refund claim would unjustly enrich the respondent and offend Article 159(2)(d) of the Constitution, which enjoins courts to administer substantive justice and apply the law to produce just outcomes. The refund was awarded as special damages.
Entitlement to specific performance and damages for breach
Specific performance was untenable for want of a valid contract; damages for breach were declined to avoid double compensation
Specific performance requires a valid, enforceable contract breached by the respondent, and inadequacy of damages. Since the agreements were void ab initio, the prayer was untenable, and the pleadings did not demonstrate damages would be inadequate. Having awarded the refund as special damages, further damages for breach would constitute double compensation and unjust enrichment.
Duty of a first appellate court
The court must re-evaluate, re-analyse and reassess the evidence and reach its own conclusions while making allowance for not having seen or heard the witnesses
Citing Selle & Another v Associated Motor Boat Co. Ltd & Others (1968) EA 123, the court restated the classic first-appeal duty: to re-evaluate the trial evidence and draw independent conclusions, bearing in mind it had no advantage of observing the witnesses' demeanour.
Legal principles established
#- A person who sells land without capacity (no registered title or confirmed grant) cannot lawfully retain the purchase price received in the invalid transaction; ordering so would be unjust enrichment contrary to substantive justice under Article 159(2)(d)
- No immovable property forming part of a deceased's estate may be sold before confirmation of the grant
- Specific performance requires a valid, enforceable contract and inadequacy of damages
Court orders
#- 1.The trial court's judgment is set aside and substituted with an order allowing the appellant's claim for refund of Kshs. 500,000/=
- 2.Interest on the sum of Kshs. 500,000/= at court rates from the date of judgment till payment in full
- 3.The appellant shall have the costs of the suit in the lower court as well as the costs of this appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court, Butere (CMC ELC)
- Butere CMC ELC Case No. 43 of 2021
- Jurisdiction invoked
- First appeal from the subordinate court (appellate jurisdiction of the Environment and Land Court over ELC matters from magistrates' courts)
Relief refused
#Specific performance of the sale agreements
There was no valid contract, as the respondent lacked capacity to sell land registered in the name of a deceased person without a confirmed grant
General damages for breach of contract
Refund of the purchase price is itself special damages; awarding further damages would amount to double compensation
Costs
The appellant shall have the costs of the suit in the lower court as well as the costs of this appeal.
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.
Ultimately, the trial court's judgment is hereby set aside and substituted with an order allowing the appellants claim for refund of Kshs. 500, 000/=. Interest on this sum is awarded at court rates and shall run from the date of this judgment till payment in full.
Can a person allege lack of capacity to sell land but have capacity to keep money received in a transaction where they had no capacity to transact? I do not think so.
Equity and justice will not countenance a situation where one-party benefits from their own mischief by using the law to shield them from returning what they unlawfully obtained.
Since the respondent had no confirmed grant for the estate of Melicen Ayoyi, at the time of sale, the land sale transactions entered into with the appellant were void and the contracts invalid.
The 2010 constitution does not just expect the court to be guided by the rule of law, it also expects courts to apply the law in a manner that would result in just outcomes.
having awarded special damages of Kshs. 500, 000/= the prayer for damages for breach of contract is declined.
Issues in the judgment
#The judgment's paragraph numbering is irregular - three unnumbered paragraphs (18, 19, 20) appear between numbered paragraphs 17 and 21, and the memorandum of appeal grounds appear under paragraph marker 19
Trial court is described as finding the appellant 'had no cause of action' yet its dismissal also rested on the agreements being void ab initio under sections 45 of the Law of Succession Act and 6 and 8 of the Land Control Act - internally these grounds are conflated in the recital
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Giesen v Wamukowa (Environment and Land Appeal E007 of 2023) [2025] KEELC 4627 (KLR)", Case Analysis (2025). Appeal against judgment in Butere CMC ELC Case No. 43 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4627/eng@2025-06-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.