Tungani v Tungani & 3 others (Environment and Land Appeal E038 of 2024) [2026] KEELC 5114 (KLR)

1. This appeal arises from the judgment of Hon. J.R. Ndururi, Senior Principal Magistrate, delivered on 27 th June 2024 in Kakamega MCELC Case No. 502 of 2018. In the impugned judgment, the trial court held that land parcel No. Butsotso/Shikoti/1004 was, at the time of the death of Dismus Tungani Manyasa alias Dismas Manyasa, still registered in his name, and that the subsequent transfer of the said parcel to the 1st respondent on 2nd October 2012, its subdivision into various parcels, and the eventual respondents transfer of those subdivisions to were without undertaken the succession proceedings and were therefore illegal, null and void ab initio. The trial court, however, declined to grant the appellant and his co-plaintiff the orders sought in the plaint on the ground that the said illegalities had been authored and executed by the appellant, who was the 2 nd plaintiff before the trial court, together with the 1 st respondent, and that granting the orders sought would have the effect of allowing them to benefit from their own unlawful conduct. The court consequently dismissed the plaintiffs’ claim, but allowed 2 the 2 nd respondent’s

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counterclaim to the extent of issuing an order restraining the plaintiffs, their agents, servants and/or any persons claiming under them from interfering with the 2 nd respondent’s use and occupation of land parcel No. Butsotso/Shikoti/16602. Background 2. The suit before the trial court was commenced by Edward Omulakai Tungani and his co-plaintiff, Roselyne Ayuma Tungani (now deceased), vide a plaint dated 24 th October 2017, in which they pleaded that they were the administrators of the estate of Dismas Tungani Manyasa alias Dismas Manyasa, whom at the time of his death, was the registered proprietor Butsotso/Shikoti/1004. Their of land parcel No. case was that 1st the defendant, in collusion with the 2nd and 3rd defendants, unlawfully caused the said parcel to be subdivided into land parcel Nos. Butsotso/Shikoti/16601 to 16605, and that the resulting subdivisions were thereafter registered in the names of the defendants. That parcel No. Butsotso/Shikoti/16601 was subsequently subdivided into parcel Nos. Butsotso/Shikoti/18607 and 18608. According 3

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to the plaintiffs, the transfer of the original parcel to the 1st defendant, the subsequent subdivisions and the transfers thereof were null and void, the same having been undertaken before administration of the deceased’s estate. 3. They therefore prayed for the following orders: i. Cancellation of the title Nos. Butsotso/Shikoti /16601 -16605, 18607 and 18608 and the original number Butsotso/Shikoti/1004 restored. ii. Costs of the suit with interest. 4. In response to the plaint, on 7 th December 2017, the 1st defendant filed an undated statement of admission, in which he admitted that the plaintiffs were his mother and brother respectively. He conceded to the plaintiffs’ assertions that he colluded with the 2nd and 3rd defendants to cause illegal subdivisions of parcel No. 1004 without obtaining grant of representation for the estate of Dismas Manyasa. He blamed his actions on his alleged ignorance of the law and maintained that the resultant titles from the subdivision of parcel No. 1004 4

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should be cancelled to allow administration of the deceased’s estate and a proper distribution afterwards. 5. The 2nd defendant opposed the plaint through his defence and counterclaim dated 4th May 2023. He denied the plaintiffs’ allegations of illegality and collusion in the subdivision of land parcel No. Butsotso/ Shikoti/1004. He admitted that the suit property had originally been registered in the name of the deceased. 6. In his counterclaim, the 2nd defendant pleaded that, by a sale agreement dated 15th May 2012, the 2nd plaintiff sold to him a portion measuring approximately 0.30 Ha out of land parcel No. Butsotso/Shikoti/1004 for Kshs. 290,000/-, which sum he paid in full to the 2nd plaintiff and one Martin Kombo Tungani. That by an agreement dated 21 st July 2012, he purchased an additional 1/4 acre from Martin Kombo Tungani for Kshs. 60,000/-. That the 2 nd plaintiff subsequently sold to him two portions measuring 15m by 3.6m and 0.1m by 31m for Kshs. 7,000/- and Kshs. 15,000/- respectively, through agreements dated 14th December 2013 and 8th March 2013. 5

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7. He stated that he was entitled to a total of one and a quarter acre, out of which one acre had been processed and registered in his name as land parcel No. Butsotso/Shikoti/16602, while transfer of the additional quarter-acre remained pending. He maintained that the vendors of the land had sold to him their inheritanceHe contended that he had taken possession and developed the land, but that the 2nd plaintiff had thereafter reneged on the agreements and interfered with his possession. 8. The 2nd defendant sought the following prayers: i. That the plaintiff’s suit against the 2 nd defendant be dismissed with costs. ii. An order of specific performance directing the plaintiffs to deliver peaceful possession of BUTSOTSO /SHIKOTI/16602 to the 2nd defendant failure to which eviction be issued against them. iii. An order directing Martin Kombo Tungani or the administrator(s) of the estate of Dismas Manyasa to cause the subdivision and transfer of ¼ acre in compliance with the agreement executed on the 8th March 2013 and in 6 default the Court

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Administrator to cause the transfer of the same to the 2nd defendant. iv. An order of injunction plaintiffs and Martin restraining the Kombo Tungani whether by themselves, servants or agents from trespassing onto, staying, interfering with the 2nd defendant's use of land parcel number BUTSOTSO /SHIKOTI/16602 and the 1/4 an acre thereof; and or v. In the alternative refund of a sum of Kshs. 391,000/- being the amount paid to them on account of purchase price and interest at court's rate from 15th May, 2012 and Kshs. 60,000/- being the amount paid to Martin Kombo Tungani on account of purchase price and interest at court's rate from 8th March, 2013 on account of purchase price until payment in full vi. Costs of all the developments on the suit land vii. That the 2nd defendant be awarded costs of the counterclaim. viii. Any other or further relief that this Honorable Court may deem fit to grant. 9. The 3rd defendant filed his defence dated 19 th September 2022 in opposition to the plaint. He stated that he was approached by members of the deceased’s family to 7

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purchase a portion of the suit property, and that upon conducting a search, he discovered that the land was still registered in the name of the deceased. That the family informed him that they had appointed the 1st defendant to undertake succession proceedings and had given him an appointment letter for that purpose. That the process was intended to culminate in the issuance of titles in favor of the 2nd plaintiff, the 1st defendant, their younger brother and himself, and that he paid the agreed consideration, which included title processing fees. 10. He particularized fraud on the part of the 1 st defendant and the plaintiffs as causing subdivision of land parcel No. Butsotso/Shikoti/1004; receiving money from him and signing the agreement and appointment letter only to later disown the same; disowning the title after it had been transferred to him; changing administrators after receiving money with the intention of filing succession proceedings to defeat the interests of the 2 nd, 3rd and 4th defendants; and giving him a false letter of administration. He maintained that he was an innocent purchaser for value, that the transactions were done in 8

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the presence and with the knowledge of the family members, and prayed that the plaintiffs’ suit be dismissed with costs. 11.The 4th defendant also filed his defence dated 20 th November 2017, where he stated that parcel No. Butsotso/Shikoti/18608 is registered in his name, but denied allegations of fraud. He maintained that he acquired the said parcel lawfully by sale from the 1 st defendant with consent of the 2nd plaintiff. He argued that he was an innocent purchaser for value without notice and exercised due diligence 12. The suit proceeded to hearing through viva voce evidence. The plaintiff testified as the only witness whereas the defence called 3 witnesses in support of their case. Plaintiffs’ evidence 13.PW1 was Edward Omulakai Tungani, the 2 nd plaintiff. He adopted his filed witness statement as his evidence in chief and testified that the plaintiffs were the administrators of the estate of Dismas Manyasa, who died on 4th April 1998. That the estate comprised land parcel 9

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No. Butsotso/Shikoti/1004, which he later discovered had been unlawfully subdivided by the 1st defendant into land parcel Nos. Butsotso/Shikoti/16601 to 16605, with parcel No. 16601 being further subdivided into parcel Nos. 18607 and 18608. That parcel No. 16602 was registered in the name of the 2nd defendant, while parcel Nos. 16605 and 18608 were registered in the names of the 3rd and 4th defendants respectively. His evidence was that the said registration was unlawful, having been undertaken before letters of administration were obtained, and that the resultant titles ought to be cancelled and the original parcel No. Butsotso/Shikoti/1004 restored. 14.On cross-examination, PW1 admitted that he sold a portion of land to the 2nd defendant and received the full consideration of Kshs. 390,000/-, but that he had already expended the said sum in pursuing the suit and wished to have the land revert to him. He conceded that three persons had purchased portions of the suit property from the family, and that he also sold land to the 4 th defendant, Gasper Amanya, in 2017, at a time when he knew that Michael Sakwa Tungani already had a title deed. He 10

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further admitted that he witnessed the agreement in favor of the 3rd defendant, that the family had appointed Michael Sakwa Tungani to undertake succession, and that the transfer to the 2nd defendant was effected by Michael Sakwa Tungani. That he did not know who carried out the subdivisions, and had no evidence that the 2nd defendant participated in the subdivision or transfer of the land. That the 3rd defendant did nothing wrong, and the agreement indicated that Michael Sakwa Tungani was selling the land on his behalf, and that he had allowed his brother to transfer the land. On re-examination, he maintained that he was not involved in the process that led to the subdivisions, and stated that Michael Sakwa Tungani failed to petition for grant administration as agreed, thereby of letters of necessitating his replacement by the plaintiffs. That marked the close of the plaintiff’s case. Defence evidence 1. DW1 was Martin Mudamba Lusuli, the 2 nd defendant. He adopted his witness statement dated 4 th May 2023 as his evidence in chief and produced the documents in his list 11

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of documents of even date as exhibits. He testified that, by a sale agreement dated 15th May 2012, he purchased from the 2nd plaintiff and Martin Kombo Tungani a portion measuring approximately 0.30 acres out of land parcel No. Butsotso/Shikoti/1004 for Kshs. 290,000/-. Further that, on 21st July 2012, he purchased an additional quarter-acre from Martin Kombo Tungani for Kshs. 60,000/-. He also stated that the 2 nd plaintiff sold to him two further portions measuring 15m by 3.6m and 0.1m by 31m for Kshs. 7,000/- and Kshs. 15,000/- respectively, on or about 14th December 2013. That he was entitled to a total of one and a quarter acre, out of which one acre had been processed and registered in his name as land parcel No. Butsotso/Shikoti/16602, while transfer of the remaining quarter-acre was pending. 2. During cross-examination, DW1 stated that, at the time he entered into the agreements, he was aware that the land belonged to a deceased person and that no succession proceedings had been filed. That he obtained a title deed from Michael Sakwa Tungani, but did not know the process used to procure it. He further stated 12

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that he dealt with the plaintiffs and the 1 st defendant, handed over the documents he signed to the 1 st defendant and the plaintiffs, but later realized that Michael had not undertaken succession proceedings. 3. DW2 was Donald Abel Anyanga, the 3 rd defendant. He adopted his witness statement dated 19 th September 2022 and produced the documents in his list of documents dated 19th September 2022. He testified that he purchased a portion of the suit property from Michael Sakwa Tungani, the 1st defendant, with the knowledge of the plaintiffs and one Martin Kombo Tungani. He stated that the agreed consideration was Kshs. 257,000/=, comprising Kshs. 150,000/= as purchase price and Kshs. 107,000/= as title processing fees for four persons, namely Michael Sakwa Tungani, Edward Omulakai Tungani, Martin Kombo Tungani and himself. He further stated that the plaintiffs and other family members informed him that Michael Sakwa Tungani had been appointed to transact on behalf of the family. According to him, he paid Kshs. 150,000/= on 30th April 2012, Kshs. 27,000/- on 10th May 2012, and later Kshs. 80,000/- 13

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together with Kshs. 1,000/- for the surveyor. That the resultant title deed was handed to him by the 1 st plaintiff at her house in the presence of the 2nd plaintiff and the 1st defendant. 4. On cross-examination, DW2 stated that, at the time he entered into the agreement, he was informed that a succession process had been initiated, although he did not know the succession cause number. He denied that he and the 1st proceedings, defendant or that were he to provided initiate the succession surveyor or procured the title deeds. He stated that the family had its own surveyor, that it was Michael Sakwa Tungani who dealt with the surveyor and the title process, and that he only paid money to Michael Sakwa Tungani. He also stated that he did not know the 2nd defendant until the filing of the suit. 5. Dw3 was Gaspa Amanya, the 4th defendant. He adopted his witness statement dated 20 th November 2017 as his evidence in chief and produced the documents filed in his list of documents of even date. He testified that he bought the land from the 1st defendant, which land belonged to 14

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the 2nd plaintiff. That upon the 2nd plaintiff receiving payment from DW3, the 1st defendant was to effect transfer of the land to him. That he conducted an official search on the suit property before purchase and ascertained that it was free from encumbrances. That upon payment, he was subsequently issued with a title deed for LP No. Butsotso/Shikoti/18608 which came about as a result of the subdivision of LP No. Butsotso/Shikoti/16601, which was then registered in the 1st defendant’s name. That he had been in peaceful occupation of the land since 2015. On cross-examination, he reiterated that at the time of purchase, the land was registered in the 1st defendant’s name. That marked the close of the defence case. 6. Upon consideration of the pleadings, evidence and submissions presented, the trial court held that the transfer of land parcel No. Butsotso/Shikoti/1004 to the 1 st defendant on 2nd October 2012, its subsequent subdivision and the transfer of the resultant parcels were illegal, null and void ab initio, the same having been undertaken after the death of the registered 15 proprietor and before

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succession proceedings had been conducted. The court, however, declined to grant the plaintiffs the orders sought in the plaint, holding that the impugned transactions had been authored and executed by the 2nd plaintiff and the 1st defendant, and that granting the reliefs sought would allow them to benefit from their own illegality. The court therefore dismissed the plaintiffs’ suit, but allowed the 2 nd defendant’s counterclaim to the extent of restraining the plaintiffs, their agents, servants, employees and/or persons claiming under them from interfering with the 2 nd defendant’s use and occupation of land parcel No. Butsotso/Shikoti/16602. 7. Having been dissatisfied with the trial court’s decision, the appellant lodged the present appeal vide a Memorandum of appeal dated 25th July 2024, citing the following four grounds of appeal: a. THAT the Honorable court erred in law and fact in upholding the titles arising from the sub-division of L.R. NO. BUTSOTSO/SHIKOTI/ 1004 despite having found them to be illegal, null and void. 16

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b. THAT the Honorable Magistrate erred in law and fact in declining to cancel the title deeds resulting from the sub-division of LR. NO. BUTSOTSO/SHIKOTI/1004 despite having found that they were illegally obtained thus illegal, null and void ab initio. c. THAT the Honorable Magistrate erred in law and fact in attempting to legitimize illegal title deeds vide issuing a permanent preservative order in relation to one of the illegal titles. d. THAT the Honorable Magistrate erred in law and fact in ambiguous, issuing a contradictory judgment and that is lacking in clarity. 8. The appellant sought the following prayers: i. THAT the Appeal be allowed and the judgment of the lower court be set aside. ii. THAT the resultant title deeds arising from the subdivision of L.R. NO. BUTSOTSO / SHIKOT1/1004 be cancelled, the procedure having been found to be illegal, null and void. iii. THAT LR. NO. BUTSOTSO/SHIKOTI/1004 be ordered to revert back to the deceased: iv. THAT the appellants be awarded costs of the lower court and costs of this Appeal. 17

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9. The appeal was canvassed by way of written submissions. On record are submissions by the appellant dated 9th October 2025, submissions by the respondents dated 4th July 2025, and supplementary submissions by the respondents dated 19th January 2026; all of which this court has carefully considered. Appellant’s submissions. 10. The appellant submitted that the trial court, having found that the Butsotso/Shikoti/1004 transfer to the of land 1st parcel No. respondent, the subsequent subdivisions and the resultant titles were illegal, null and void ab initio, erred in declining to cancel the said titles. He contended that the impugned judgment was contradictory, as the trial court could not lawfully preserve titles which it had expressly found to be founded on an illegality. Relying on Dina Management Limited v County Government of Mombasa & 5 Others, Funzi Development Ltd & Others v County Council of Kwale, Mombasa Civil Appeal No. 252 of 2005 [2014] eKLR, and Mapis Investment (K) Limited v Kenya Railways Corporation [2006] eKLR, counsel for 18

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the appellant submitted that a court cannot sanction an illegality or enforce rights arising from an illegal transaction. Counsel therefore prayed for the court to allow the appeal, set aside the impugned judgment, cancel all titles arising from land parcel No. Butsotso/Shikoti/1004, restore the original parcel in the name of the deceased, and award costs of the suit and the appeal to the appellant. Respondents’ submissions. 11. The respondents submitted that the trial court properly declined to grant the orders sought by the appellant, notwithstanding its finding that the impugned titles were irregularly procured. They contended that the appellant and his family were the authors of the very transactions now challenged, having voluntarily sold portions of the suit property to the 2nd, 3rd and 4th respondents, received the purchase price, placed them in possession and led them to believe that the transactions were lawful. It was their submission that the appellant could not approbate and reprobate, nor invoke the court’s aid to benefit from his own wrongdoing. 19

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12. Relying on the doctrines of estoppel, constructive trust and proprietary estoppel, as well as section 120 of the Evidence Act and section 26 of the Land Registration Act, they submitted that the respondents were innocent purchasers who had taken possession and developed their respective portions with the knowledge and consent of the appellant and his family. They further submitted that the Land Registrar was not made a party to the proceedings, yet the appellant sought cancellation of titles, an order which could not properly issue in the absence of the officer charged with maintaining the register. They therefore prayed for the court to uphold the judgment of the trial court and dismiss the appeal with costs. Analysis and determination 13. The court has carefully considered the appeal, rival submissions and the entire record. The duty of this court as a first appellate court is to reanalyze the evidence presented before the trial court and make its own independent conclusions bearing in mind that it had no 20

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opportunity to see or hear witnesses and make due allowance for that. 14. In the case of Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] e KLR, the court reiterated the duty of the first appellate court thus; “This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way…’’ 15. It is trite that the court should not unnecessarily deviate from the finding of the lower court unless there are compelling reasons to do so. In Peters v Sunday Post Ltd [1958] EA 424, the Court held that; “Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to 21

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appreciate the circumstances weight admitted or or bearing proved, or of had plainly gone wrong, the appellate court will not hesitate so to decide” 16. Having considered the grounds of appeal, the appellant’s core complaint is that the trial court was wrong in failing to cancel titles issued through a process that was unlawful. 17. In the instant case, the appellant in his plaint averred that the 1st respondent colluded with the 2nd and 3rd respondents and illegally subdivided parcel No. Butsotso/Shikoti/1004 into parcel Nos. 16601-16605. That parcel No. 16601 was further subdivided into 18607 and 18608. That the 2nd respondent became registered owner of 16602 while the 3rd respondent became registered owner of 16605. His argument was that the 1 st respondent being not the administrator of the estate of Dismas Manyasa the registered owner of parcel No. 1004, had no authority to subdivide the said parcel. The 1 st respondent filed a statement of admission supporting the appellant’s claim. 22

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18. It is not disputed that parcel No. 1004 registered in the name of the deceased was subdivided and transferred to the 2nd to 4th respondents before succession in respect to the deceased’s estate was filed. 19. Section 45 of the Law of succession Act prohibit the intermeddling with a deceased person’s estate, which is an illegality. Section 82 (b) (ii) of the said Act provides that no immovable property of a deceased person shall be sold before confirmation of the grant. In view of these provisions, the sale and transfer of the suit property to the 2nd to 4th respondents were unlawful. 20. Article 40 (6) of the Constitution of Kenya protects the right to acquire and own property only in respect to property that is lawfully acquired. 21. Section 26 of the Land Registration Act provide for indefeasibility of title as follows; “Certificate of title to be held as conclusive evidence of proprietorship (1) The certificate of title issued by the Registrar upon purchaser of registration, land upon a or to a transfer or transmission by the proprietor shall be 23

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taken by all courts as prima facie evidence that the person named as proprietor of the land is owner, the absolute subject easements, to and the restrictions indefeasible encumbrances, and conditions contained or endorsed in the certificate, and the title of that proprietor shall not be subject to challenge, except— (a) On the ground of fraud or misrepresentation to which the person is proved to be a party; or (b)Where the certificate of title has been acquired illegally, unprocedurally or through a corrupt scheme.” 22. Thus, registration of land vests in the proprietor thereof absolute and indefeasible rights unless there is proof that the acquisition of the said title was by fraud, misrepresentation, illegality, want of procedure or corruption. 23. In the case of Dina Management Limited v County Government of Mombasa & 5 Others [2023] KESC 30 (KLR) (21 April 2023) (Judgment) the 24

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Supreme court of Kenya held that a title obtained unlawfully cannot confer lawful ownership. 24. In this case, the appellant’s argument is simple; the sale of the suit property by him and his family members was contrary to the provisions of the Law of Succession Act and therefore should be nullified so that the land reverts to his father’s estate. 25. The evidence on record shows that the 1 st respondent sold land to the 2nd and 3rd respondents in a transaction witnessed and endorsed by the appellant, his mother and other family members. The basis of the sale was a letter by his family dated 30 th April 2012, stating that they had appointed the 1st respondent to be the administrator of their later father’s estate. The 4 th respondent purchased the land from the appellant, who admitted to have used the money received as consideration to file suit in the lower court against the respondents including the 4th respondent. 26. In essence, the record shows that the appellant together with his family members namely his mother and two brothers hatched a scheme to defraud the 2 nd to 4th 25

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respondents by circumventing the provisions of sections 45 and 82 of the Law of Succession Act. The entire family took part in the sale of the suit property to the 2 nd to 4th respondents and reneged on their appointment of the 1 st respondent as the preferred intended administrator of he deceased, to defeat the 2nd to 4th respondents’ claim. 27. Whereas the law as provided for in Article 40 (6) of the Constitution of Kenya and section 26 of the Land Registration Act provide that only lawfully acquired property will have legal protection and title acquired through illegality, improper procedure, fraud, misrepresentation or corruption, may be impeached, those provisions ought not be applied in a manner that will have the outcome of benefiting a seller of the same property who misrepresentation, is the perpetrator of fraud, illegality, improper procedure or corruption against the person who acquired title in good faith. 28. In my view, Article 40 of the Constitution of Kenya and section 26 of the Land Registration Act ought to be applied in a manner that protects the real and or bona 26

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fide owner of property against losing their property in instances of fraud, misrepresentation, illegality, want of procedure or corruption. 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, as the same will result in unjust enrichment, which is frowned upon by equity. 29. The Black’s Law Dictionary defines equity as follows; “the recourse to principles of justice to correct or supplement the law as applied to particular circumstances…specifically, the judicial prevention of hardship that would otherwise ensue from the literal interpretation of a legal instrument as applied to an extreme case or from he literal exclusion of a case that seems to fall 27

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within what the drafters of the instrument probably intended.” 30. In Article 10 (2) (b) of the Constitution of Kenya, equity has been elevated to a constitutional imperative requiring courts in the exercise of judicial authority to protect and promote that principle. This ensures that decisions made are not only in accordance with the law, but they are also fair and just and do not reward unconscionable conduct or enable unjust enrichment. 31. In the case of Willy Kimutai Kitili v Michael Kibet (2018) e KLR, the Court of Appeal held that equity intervenes for purposes of providing relief against unconscionable conduct. 32. 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. The appellants and his family having confirmed selling the suit property to the 2nd to 4th respondents and the later having obtained titles and possession of the suit property, the appellant and his family are estopped from reneging on the transactions. 28

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The appellant cannot be allowed to use unlawful means to get the suit property which they voluntarily sold. 33. In the instant case all the parties in the case save the 2nd to 3rd respondents were the heirs of the late Dismas Manyasa and therefore upon the death of the deceased and upon succession, parcel No. 1004 would devolve to them. In a bid to deceive and defraud the 2 nd to 3rd respondents, the appellants’ family deliberately sold the land without subsequently a obtained grant it of and representation used I to then deny the respondents the land they purchased. This is a clear case where equity is applicable to address the appellant’s unconscionable conduct. The family having sold the land to the respondents, can now not hide behind lack of grant and the provisions of sections 45 and 82 of the Law of succession Act to deny the 2nd to 4th respondents their property. To allow the appellant’s claim would amount to granting the appellant unjust enrichment which is frowned upon by equity. 34. For the above reasons, I find and hold that the trial court was right and acted within the Constitution in 29

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denying the appellant opportunity to benefit from his acts of illegalities and fraud. I therefore find no merit in this appeal, which I dismiss with costs to the 2nd, 3rd and 4th respondents. 35. It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA IN OPEN MICROSOFT COURT/VIRTUALLY TEAMS VIDEO THROUGH CONFERENCING PLATFORM THIS 22ND DAY OF JULY 2026. A. NYUKURI JUDGE In the presence of; Ms. Rauto for the appellant 4th respondent in person Court Assistant: Delphine 30

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