Jeremiah v Mburugu (Environment and Land Appeal E051 of 2025) [2026] KEELC 4184 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that buying land from a deceased person's estate before succession is illegal, void, and cannot transfer ownership.
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 respondent proved/established constructive trust or otherwise
- 2.What relief(s) ought to issue in respect of the subject matter
Key legal issues
#Whether the sale of land belonging to an unadministered deceased's estate can ground a constructive trust
No. The sale by a person without a grant of representation amounted to intermeddling under section 45 of the Law of Succession Act, an illegality and criminal offence out of which no lawful right can arise; constructive trust cannot be founded on it.
The respondent knew the suit property belonged to a deceased person whose estate had not been succeeded and that the appellant had no legal capacity to transact. The transaction was therefore an illegality and criminal intermeddling under section 45. Following Republic v Chengo and Kenya Airways v Flora, a void act is a nullity that cannot found legal proceedings, and courts will not enforce obligations arising from an illegality at the instance of a party implicated in it.
Whether the trial magistrate correctly applied Macharia Mwangi Maina v Davidson Mwangi Kagiri
No. That decision was distinguishable because there the vendor was the lawful and registered owner who permitted occupation; here the appellant had no legal title.
The court found the trial magistrate misapprehended and misapplied the ratio in Macharia Mwangi. In that case the registered owner's inequitable conduct warranted constructive trust. Here the appellant lacked legal title to the suit property, and Shah v Mombasa Bricks and Tiles was equally inapplicable since constructive trust there arose in connection with legal title.
What relief should issue given the illegality of the sale agreement
The suit was dismissed, the counter claim allowed with a declaration of illegality and eviction, but the appellant was ordered to refund Kshs. 700,000/= with 14% interest to avoid unjust enrichment.
Although the respondent's claim failed on the illegality, the appellant had been paid the purchase price and it would be unconscionable and unjustly enriching for the appellant to retain both the land and the money. Applying the unjust enrichment principles in Standard Chartered Financial Services v Manchester Outfitters, the court ordered a refund with interest.
Legal principles established
#- A first appellate court must re-evaluate the evidence afresh but will defer to trial court findings unless they are unsupported by evidence, perverse, based on misapprehension of evidence or law, or on a demonstrable error of principle
- A trust, whether constructive or otherwise, must be proved by cogent evidence; the law never implies and the court never presumes a trust save in absolute necessity
- An act which is void is a nullity and cannot found any legal proceedings; no court ought to enforce an illegal contract where the person invoking the court's aid is implicated in the illegality
- Constructive trust cannot arise out of an illegal transaction or criminal conduct, and equity cannot be used to defeat clear statutory provisions
- Unjust enrichment requires that the defendant be enriched by receipt of a benefit, at the plaintiff's expense, and that it would be unjust to allow him to retain it
Court orders
#- 1.The Appeal be and is hereby allowed
- 2.The Judgment of the learned trial magistrate and the decree arising therefrom be and is hereby set aside
- 3.In lieu thereof, an order be and is hereby made dismissing the respondent's suit vide Plaint dated 02.05.2023
- 4.The Appellant's counter claim dated the 02.06.2023 be and is hereby allowed on the following terms
- 5.A declaration be and is hereby issued to the effect that the sale agreement dated the 14.09.2004 was illegal, unlawful and void ab intio
- 6.The respondent be and is hereby ordered to vacate the suit property and hand over vacant possession to the appellant within 90 days from the date hereof
- 7.In default to vacate and hand over vacant possession, appellant shall be at liberty to evict the respondent and an eviction order shall issue
- 8.The Appellant be and is hereby directed to refund to and in favour of the respondent the sum of Kshs. 700,000/= only being the purchase price paid to the appellant
- 9.The refund of the purchase price shall accrue interest at court rates [14%] from the date of filing the suit in the lower court
- 10.Each party shall bear own costs of the appeal
- 11.Each party shall equally bear own costs of the proceedings in the lower court
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court (trial court; Hon. S K Ngetich – SPM)
- Not stated
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court's judgment (section 78 of the Civil Procedure Act); appeal against the judgment delivered on 18.06.2025
Relief refused
#Respondent's claim for transfer of 2 acres out of LR No. Nkuene/Kathera/1239
Constructive trust was not proved and the sale agreement was an illegality constituting intermeddling with a deceased person's estate under section 45 of the Law of Succession Act
Respondent's implied claim for specific performance
The evidence sought specific performance disguised as constructive trust, and equity cannot circumvent clear provisions of the law
Costs
Each party shall bear own costs of the appeal; and each party shall equally bear own costs of the proceedings in the lower court.
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.
The Appeal be and is hereby allowed.
The Judgment of the learned trial magistrate and the decree arising therefrom be and is hereby set aside.
A declaration be and is hereby issued to the effect that the sale agreement dated the 14.09.2004 was illegal, unlawful and void ab intio.
The respondent be and is hereby ordered to vacate the suit property and hand over vacant possession to the appellant within 90 days from the date hereof.
The Appellant be and is hereby directed to refund to and in favour of the respondent the sum of Kshs. 700,000/= only [being the purchase price that was paid to the appellant.].
Each party shall bear own costs of the appeal.
Each party shall equally bear own costs of the proceedings in the lower court.
it is my finding and holding that constructive trust cannot sprout out of the illegal sale agreement; or criminal conduct.
where an act is illegal, anything done out of it, is void and a nullity.
The principle of unjust enrichment presupposes three things: first, that the defendant has been enriched by the receipt of a benefit; secondly, that he has been so enriched at the plaintiff's expense; and thirdly, that it would be unjust to allow him to retain the benefit
Issues in the judgment
#Internal inconsistency in the date of the sale agreement referenced in the grounds of appeal
The judgment refers to the appellant contending for constructive trust where the respondent plainly did, an apparent slip
Directions on the appeal were given on 26.05.2026, and submissions were dated 05.06.2026 and 22.06.2026, yet the memorandum of appeal is dated 11.07.2025 against a judgment of 18.06.2025; the chronology as printed is internally odd but not conclusively contradictory
The refund of Kshs. 700,000/= ordered appears inconsistent with the pleaded defence that only Kshs. 530,000/= was paid
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jeremiah v Mburugu (Environment and Land Appeal E051 of 2025) [2026] KEELC 4184 (KLR)", Case Analysis (2026). Not stated in the judgment (memorandum of appeal dated 11.07.2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4184/eng@2026-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.