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ELCPartially AllowedMemorandum of Appeal dated 3rd March 2025 (from Nkubu MCELC E008 of 2021)

Mutea & another v M’Nkoroi (Environment and Land Appeal E013 of 2025) [2026] KEELC 346 (KLR)

Environment and Land Court of Kenya
29 January 2026
7,285 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~29 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court dismissed a land buyer's claim because the land belonged to a deceased person's estate, making the sale agreement void.

What this practically means

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Executive summary

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This is a first appeal from the judgment of Hon. S.K Ngetich (SPM) in Nkubu MCELC E008 of 2021, in which the Respondent (plaintiff) had sued the Appellants for transfer of one acre excised from LR. Abuthuguci/U-Kaungu/1525, refund of Kshs. 221,000, and damages for breach of contract. The trial magistrate found the Respondent proved payment of Kshs. 200,000 and breach of a sale agreement, awarded Kshs. 600,000 damages, dismissed the claim against the 2nd Appellant but denied her costs on grounds of collusion. Oguttu Mboya J, sitting as a first appellate court, framed four issues: whether the payment finding was supported by evidence; whether the sale agreement was valid; whether there was breach and lawful damages; and whether denial of the 2nd Appellant's costs was proper. The court held that the Respondent's evidence was contradictory and inconsistent, rendering the finding of payment perverse. The sale agreement was held illegal and void because it dealt with a deceased's unadministered estate, amounting to intermeddling under sections 45 and 82 of the Law of Succession Act, and the unsigned document failed section 3(3) of the Law of Contract Act. Damages awarded on an illegal contract offended ex turpi causa non oritur actio. Denial of the 2nd Appellant's costs was an improper exercise of discretion, there being no evidence of collusion. The appeal was allowed, the trial judgment and decree set aside, the Respondent's suit dismissed, and costs of both the appeal and the subordinate court awarded to the Appellants.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the finding by the learned trial magistrate that the 1st Appellant received Kshs. 200,000 only is founded on the evidence on record or otherwise
  2. 2.Whether the sale agreement/contract between the 1st Appellant and the Respondent was valid and lawful or otherwise
  3. 3.Whether the 1st Appellant breached the contract and whether the award of damages of Kshs. 600,000 is lawful
  4. 4.Whether the learned trial magistrate improperly and injudiciously exercised his discretion in denying the 2nd Appellant costs of the suit

Key legal issues

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01

Proof of payment of Kshs. 200,000

Holding

The finding that the 1st Appellant received Kshs. 200,000 was perverse and based on misapprehension of contradictory and inconsistent evidence

Reasoning

The Respondent's two witness statements contradicted each other and the written sale agreement of 4th February 2013; a purported 2012 agreement and a 6th February 2013 agreement were never produced; the terms of a written agreement cannot be varied by oral evidence under section 97 of the Evidence Act. The contradictions raised questions of manipulation and lack of bona fides, negating a finding that payment was made and acknowledged.

p. 9
02

Validity of the sale agreement over a deceased's estate

Holding

The sale agreement was illegal and void as it involved intermeddling with a deceased's unadministered estate

Reasoning

The suit property was registered in the name of a deceased person and the estate had not been succeeded at the time of the sale. Sections 45 and 82 of the Law of Succession Act prohibit dealings with a deceased's estate before confirmation of grant, and such dealings amount to the criminal offence of intermeddling. The agreement was also incomplete, bearing only the vendor's signature, contrary to section 3(3) of the Law of Contract Act.

p. 10
03

Breach of contract and damages

Holding

No breach could arise from a void agreement and the award of Kshs. 600,000 damages was an illegality under ex turpi causa non oritur actio

Reasoning

A void act is a nullity and cannot be the subject of breach. The Respondent did not sign the agreement, so he could not claim it was breached. The court cannot be the instrument of enforcing obligations arising out of an illegal transaction in which the claimant is implicated; the award of damages on an illegal contract contravenes the doctrine of ex turpi causa non oritur actio and cannot stand.

p. 12
04

Denial of the 2nd Appellant's costs

Holding

The trial magistrate improperly and injudiciously denied the 2nd Appellant costs since no evidence of collusion was tendered

Reasoning

Having dismissed the suit against the 2nd Appellant, the magistrate nonetheless denied her costs on grounds of collusion with the 1st Appellant, yet no evidence anchored collusion. Taking out grant of letters of administration was a lawful exercise of statutory mandate. Costs are discretionary but cannot be exercised capriciously or arbitrarily, contrary to section 27 of the Civil Procedure Act.

p. 12

Legal principles established

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  • A first appellate court must re-evaluate the entire evidence but should only depart from trial court findings where they are unsupported by evidence, perverse, based on misapprehension of the evidence, or founded on an error of principle
  • Any dealing with a deceased's estate before confirmation of grant is intermeddling and renders such transaction illegal and void; no court should enforce an illegal contract
  • An award of costs is discretionary but must not be exercised capriciously or arbitrarily; a party against whom the suit is dismissed is ordinarily entitled to costs absent evidence justifying denial

Court orders

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  1. 1.The Appeal be and is hereby allowed
  2. 2.The Judgment of the learned trial magistrate dated and delivered on 5th February 2025 and the consequential decree be and are hereby set aside
  3. 3.In lieu thereof, the Respondent's suit vide Nkubu MCELC E008 of 2021 be and is hereby dismissed
  4. 4.Costs of the Appeal be and are hereby awarded to the Appellants
  5. 5.Costs of the Proceedings in subordinate court be and are hereby awarded to the Appellants (Defendants in the lower court)

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Principal Magistrate's Court, Nkubu
Nkubu MCELC E008 of 2021
Jurisdiction invoked
First appellate jurisdiction over an appeal from the subordinate court (section 78, Civil Procedure Act)

Relief refused

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Respondent's suit (transfer of one acre, refund and damages) in its entirety

The sale agreement was void ab initio as it amounted to intermeddling with a deceased's estate, and the Respondent did not sign the agreement; payment of Kshs. 200,000 was not proven

p. 13

Costs

Costs of the Appeal and costs of the proceedings in the subordinate court awarded to the Appellants

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Simply put, the liberty is not at large and can only be deployed where it is shown that the trial court acted on no evidence; the findings are perverse to the evidence on record; the findings are premised on misapprehension of the evidence on record; or where it is demonstrably shown that there is an error of principle which vitiates the conclusions arrived at by the court.
p. 5Scope of first appellate court jurisdiction
To my mind, the provisions of section 45 and 82 of the Law of Succession Act negate the impugned sale agreement and render same not only illegal but void.
p. 10Intermeddling with a deceased's estate
If an act is void then it is in law a nullity and not a mere irregularity. It is not only bad but incurably bad.
p. 11Effect of a void agreement (Macfoy v United Africa Ltd)
i. The Appeal be and is hereby allowed. ii. The Judgement of the learned trial magistrate dated and delivered on 5th February 2025 and the consequential decree be and are hereby set aside. iii. In lieu thereof, the Respondent's suit vide Nkubu MCELC E008 of 2021 be and is hereby dismissed. iv. Costs of the Appeal be and are hereby awarded to the Appellants. v. Costs of the Proceedings in subordinate court be and are hereby awarded to the Appellants [Defendants in the lower court].
p. 13Final orders

Issues in the judgment

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minor

Case title not stated; party names other than the trial magistrate are not given anywhere in the judgment, which refers only to 'the Respondent' and 'the Appellants'

minor

Damages figure inconsistency between memorandum of appeal (Kshs. 6,000) and the rest of the judgment (Kshs. 600,000)

minor

Date inconsistencies: reference to a 'purported sale agreement of 23rd August 2021' where the pleaded agreement was dated 23rd August 2012; and directions stated as 25th November 2025 while record of appeal submissions are dated 18th December 2025

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, "Mutea & another v M’Nkoroi (Environment and Land Appeal E013 of 2025) [2026] KEELC 346 (KLR)", Case Analysis (2026). Memorandum of Appeal dated 3rd March 2025 (from Nkubu MCELC E008 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/346/eng@2026-01-29

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