Tungani v Tungani & 3 others (Environment and Land Appeal E038 of 2024) [2026] KEELC 5114 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled that a family who fraudulently sold deceased's land cannot cancel the buyers' titles to reclaim it.
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 trial court erred in failing to cancel titles arising from the subdivision of parcel No. Butsotso/Shikoti/1004 despite finding them illegal, null and void ab initio
- 2.Whether the trial court erred in issuing a preservative order over one of the impugned titles
- 3.Whether the impugned judgment was ambiguous and contradictory
Key legal issues
#Whether titles procured before succession, though illegal, should be cancelled where the appellant himself authored the illegality
No; equity and the Constitution prevent a perpetrator of fraud from benefiting from his own wrongdoing, so the trial court properly declined to cancel the titles
The court found the appellant and his family sold the suit property to the 2nd to 4th respondents, received consideration, placed them in possession, and later reneged to defeat the purchasers. Although sections 45 and 82 of the Law of Succession Act rendered the sales unlawful, the constitutional and statutory protections of property and indefeasible title protect bona fide owners, not fraudulent sellers. Applying them for the appellant would produce unjust enrichment, contrary to the constitutional value of equity under Article 10(2)(b).
Whether the appellant and his family were estopped from challenging the transactions
Yes; having voluntarily sold the land and allowed the purchasers to obtain titles and possession, they are estopped from reneging
The evidence showed the 1st respondent sold land to the 2nd and 3rd respondents in transactions witnessed and endorsed by the appellant, his mother and other family members, on the basis of a family appointment letter dated 30th April 2012. The 4th respondent bought from the appellant himself. The court held the family hatched a scheme to defraud the purchasers and were estopped from reneging on the transactions.
Legal principles established
#- A party who sells property through his own fraud and illegality and then reneges cannot invoke constitutional protection of property and indefeasibility of title against good-faith purchasers, as that would amount to unjust enrichment.
- The duty of a first appellate court is to re-evaluate and re-analyse the evidence and reach its own conclusions while allowing for the absence of an opportunity to see or hear witnesses.
Court orders
#- 1.Appeal dismissed
- 2.Costs of the appeal awarded to the 2nd, 3rd and 4th respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Senior Principal Magistrate's Court, Kakamega
- Kakamega MCELC Case No. 502 of 2018
- Jurisdiction invoked
- First appellate jurisdiction over appeals from magistrates' courts in land matters
Relief refused
#Setting aside of the trial court's judgment
The court found no merit in the appeal; the trial court rightly denied the appellant an opportunity to benefit from his own illegality and fraud
Cancellation of resultant title deeds and restoration of parcel No. Butsotso/Shikoti/1004
The appellant and his family were the perpetrators of the fraud and illegality and cannot invoke Article 40 and section 26 against good-faith purchasers
Costs
Appeal dismissed with costs to the 2nd, 3rd and 4th respondents
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.
Those provisions were not meant to protect fraudulent owners of land against purchasers purchasing in good faith.
Where the owner of property subverts the law and uses fraud and illegality to obtain consideration from sale of land and thereafter reneges the sale agreement, and moves the court with intention to reverse the consequences of his fraudulent conduct, he cannot revert to Article 40 of the Constitution and section 26 of the Land Registration Act for protection
I therefore find no merit in this appeal, which I dismiss with costs to the 2nd, 3rd and 4th respondents.
In view of Article 159 of the Constitution of Kenya which enjoins the court to administer justice, courts exist to do justice and not allow fraudsters to abuse the law for unjust enrichment.
Issues in the judgment
#The judgment is internally inconsistent on who was refused relief: it variously refers to the appellant (Edward Omulakai Tungani) as the 2nd plaintiff and to Roselyne Ayuma Tungani as the 1st plaintiff, yet also describes Roselyne as the mother and Edward as the 1st plaintiff's co-plaintiff/administrator roles inconsistently across paragraphs
Judgment signature block dated 22nd July 2026 while submissions dated 19th January 2026 are recorded; also the cause number in the appeal is the same as the trial case number, with no separate appeal number stated
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tungani v Tungani & 3 others (Environment and Land Appeal E038 of 2024) [2026] KEELC 5114 (KLR)", Case Analysis (2026). Kakamega MCELC Case No. 502 of 2018 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5114/eng@2026-07-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.