1. This appeal arises from a Judgment delivered on 2nd July, 2025, in Nakuru CMCELC No. 102 of 2019. The Appellant, being aggrieved by the said Judgment, lodged a Memorandum of Appeal dated 17th July, 2025, and listed the following grounds:
1) THAT the Learned Trial Magistrate erred in law and in fact in sending away the Appellant without the relief of restitution or any relief at all.
2) THAT the Learned Trial Magistrate erred in law and in fact in allowing the Respondent to enrich herself unjustly.
2. A brief background to this appeal is that the Appellant had filed a Plaint dated 2nd May, 2019, seeking the following orders:
a) THAT the Honourable Court do issue an order to the Defendant compelling the Defendant to excise three(3) acres from NAKURU/RARE KIRIRI/903 and transfer the same to the Plaintiff.
b) ALTERNATIVELY this Hounorable Court do order the Defendant to pay the Plaintiff the equivalent of the value of three ( 3)acres out of NAKURU/RARE KIRIRI/903 as at the time of the conclusion of this suit same to be assessed by a registered licensed Valuer.
c) Costs of the suit and interest thereon.
3. The matter was heard, and the Learned Magistrate dismissed the Plaintiff’s suit with no orders as to costs.
4. The Appellant’s case in the trial court was that the Respondent’s deceased husband died leaving behind an outstanding loan with the Bank, and there was eminent threat of the suit land being sold at an auction; therefore, the Appellant intervened by purchasing part of the suit parcel to offset the loan.
5. It was the Appellant’s case that the Respondent disowned the sale agreement and claimed that she lacked the capacity since she had not been appointed as an administrator of her late husband’s estate. The Appellant also sought an alternative prayer that the Defendant be ordered to pay the Plaintiff the equivalent of the value of three (3) acres out of the suit property from the conclusion of the suit, and that a registered Valuer assess the same.
6. The Respondent filed a Statement of Defence dated 4th June, 2019, where she denied the claim in the plaint and averred that the prayers could not be granted since the purported sale was nullified by the court and that the Appellant never appealed the said decision.
APPELLANT’S SUBMISSIONS
7. Counsel for the Appellant filed submissions dated 18th March 2026 and identified the following issues for determination:
a) Whether the Trial Magistrate erred in finding the Appellant had not proved his case on a balance of probabilities.
b) Whether the Learned Trial Magistrate erred in holding that the transaction between the parties was illegal and incapable of enforcement.
c) Whether the court erred in failing to grant the Appellant restitution for the consideration paid.
d) Who should bear the cost of the appeal?
8. On the first issue, counsel submitted that the trial court failed to properly evaluate the material evidence on record, as the evidence showed that the Appellant had purchased three acres from the Respondent in 2013. Further, the purchase price was used specifically to offset a loan secured against the suit property, thus directly benefiting the Respondent, and the Appellant had taken possession and has been utilizing the land.
9. Counsel argued that despite the Respondent's defense regarding the lack of letters of administration, the evidence proved the existence of a transaction and a benefit conferred.
10. On the second issue, as to whether the agreement was illegal, counsel submitted that the trial court dismissed the suit on the grounds that the sale agreement was illegal, having been entered into before the Respondent had obtained letters of administration in violation of Section 45(1) of the Law of Succession Act. Counsel submitted that the reasoning failed to consider the broader context of equity and justice.
11. Mr Ngure submitted that while the Appellant concedes that the dealings with the estate of the deceased without letters of administration may be irregular, the Learned Magistrate erred in concluding that such irregularity automatically extinguished the Appellant’s claim.
12. Counsel further submitted that courts have held that even if a contract is unenforceable, the court may still grant restitution relief to prevent unjust enrichment. Counsel argued that the court erred in law by failing to consider restitution and unjust enrichment by allowing the Respondent to retain both the three acres of land and the purchase price, which cleared her loan. Counsel relied on the cases of Kenya Airways Limited V Satwant Singh Flora [2013] eKLR and Jordan Properties Ltd v Margaret Njoki Migwi [2020] eKLR, and urged the court to allow the appeal with costs.
RESPONDENT’S SUBMISSIONS
13. Counsel for the Respondent filed submissions dated 7th April 2026, and identified the following issues for determination:
a) Whether the Appellant may raise such other grounds not contained in the Memorandum of Appeal.
b) Whether the Learned Trial Magistrate erred in holding that the transaction between the parties was illegal and incapable of enforcement.
c) Whether the Learned Trial Magistrate erred in finding that the Appellant has not proved his case on the balance of probabilities.
d) Whether the Learned Magistrate erred in law and fact in failing to grant the Appellant restitution for the consideration paid.
e) Who should bear the costs of the appeal?
14. On the first issue, as to whether the Appellant may raise grounds not contained in the Memorandum of Appeal, counsel submitted that the Appellant has improperly introduced and argued grounds that are not contained in the Memorandum of Appeal, in his submissions, which the Honourable Court ought to disregard in limine.
15. Mr. Chege further submitted that Appellant expanded the scope of the appeal by introducing new issues, to wit that the Learned Magistrate erred in both law and fact by failing to evaluate the evidence on record properly and that the Learned Magistrate misapplied the law relating to illegality.
16. Counsel stated that the issues were not pleaded in the Memorandum of Appeal and therefore fell outside the jurisdiction of this court in determining the appeal, and relied on Order 42 Rule 4 of the Civil Procedure Rules and the case of Independent Electoral and Boundaries Commission & another V Mule & 3 others [2014] KECA 890 (KLR)
17. On the second issue, counsel submitted that the Appellant admitted that at the time the impugned sale agreement was made, the Respondent was not an administrator of the deceased’s estate, hence had no capacity to enter into dealings regarding the deceased’s estate, and as such, the same transactions were illegal and unenforceable.
18. It was counsel’s further submission that despite having acknowledged an illegality, the Appellant wants to be restituted by the same contract that was illegal ab initio, and cited Section 45 (2) (a) and (b) of the Law of Succession Act and the case of Kenya Airways Ltd V Satwant Singh Flora (2013) eKLR.
19. On the third issue, counsel relied on Section 107 of the Evidence Act and submitted that the onus fell on the Appellant to lead evidence that the alleged Kshs. 370,000/= was paid to the deceased’s loan account for purposes of repaying the loan left by the deceased and equally for the discharge of the suit property. Further, the Appellant did not lead any evidence for restitution, and urged the court to dismiss the appeal with costs.
ANALYSIS AND DETERMINATION
20. The issues for determination are whether the Learned Magistrate erred in not considering the alternative order of restitution/refund of the purchase price and whether the court set aside the Judgment and grant the alternative order.
21. This is a first appeal, and the court is cognizant of its primary role, as was held in the case of Abok James Odera t/a A.J Odera & Co. Associates V John Patrick Machira t/a Machira & Co. Advocates [2013] e KLR, the court held as follows:
“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze 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”
22. It is not in dispute that Henry Mungai Kinuthia (deceased) was the Respondent’s husband, and that the deceased had borrowed Ksh. 150,000/ loan from Molyn Credit Limited and had the suit property charged against and the bank did not write off despite request.
23. The evidence on record as per the record of Appeal indicates that the Appellant entered into an agreement with the Respondent for the sale of 3 acres of the suit parcel on 22nd July, 2013, at a consideration of Kshs. 370,000/ which monies were used to offset the loan.
24. The Respondent filed Succession proceedings for the estate of the, and the Appellant opposed it vide a protest application for failure to have him included in the proceedings, but the court found that the Respondent lacked the capacity to sell to the Appellant the suit land as she had not yet taken out the letters of administration. The Respondent denied having entered into an agreement with the Appellant for the sale of the suit parcel.
25. The trial court dismissed the Appellant’s case on the ground that the Respondent lacked the legal capacity to enter into an agreement for the sale of land belonging to a deceased person without first obtaining a confirmed grant of letters of administration. The court held that the agreement was void under Sections 45 and 82 of the Law of Succession Act.
26. It is trite law that a party cannot dispose of or enter into agreements to dispose of land belonging to the estate of a deceased person without first applying for and obtaining letters of administration. Any such transaction is void ab initio. This is a court of equity, which has the power to grant equitable remedies provided for under common law. The court cannot turn a blind eye and perpetuate injustice where a party wants to benefit unjustly to keep the land and the money. Since there was evidence that the Plaintiff and the Respondent entered into a sale agreement for 3 acres of the suit land and paid the money to offset a loan owed by the deceased person, why would the Respondent want to enrich herself with the Appellant’s money? This would be unconscionable.
27. In the case of Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd [1943] AC 32 at 61, the court held that:
“ It is clear that any civilized system of law is bound to provide remedies for cases of what has been called unjust enrichment or unjust benefit, that is, to prevent a man from retaining the money of or some benefit derived from another which it is against conscience that he should keep. Such remedies in English law are generically different from remedies in contract or in tort, and are now recognized to fall within a third category of the common law which has been called quasi-contract or restitution.”
28. The doctrine of unjust enrichment is founded upon fairness and good conscience. It seeks to ensure that no party profits at another’s expense in circumstances where retention of such benefit would be inequitable.
29. In the case of Samuel Kamau Macharia v Kenya Commercial Bank Limited, Kenya Commercial Finance Company Limited [2003] eKLR, R. Kuloba J, (as he then was) stated that:
“Forming the foundation of quasi-contractual claims, such as actions for money had and received, and for money paid to a third party from which the defendant has derived a benefit, and equitable relief from undue influence and catching bargains, amongst other restitutionary claims, the idea of unjust enrichment or unjust benefit is intended to prevent a person from retaining money or some benefit derived from another which it is against conscience that he should keep it, and he should, in justice, restore it to the plaintiff .The gist is that a defendant, upon the circumstances of the case is obliged by the ties of natural justice and equity to make restitution. As Lord Goff of Chieveley and Professor Gareth Jones state in their monumental treatise, The Law of Restitution , 5th edn (1998), at pp 11-12: “Most mature systems of law have found it necessary to provide, outside the fields of contract and civil wrongs, for the restoration of benefits on grounds of unjust enrichment.”
30. Similarly, in the case of Chase International Investment Corporation and another V Laxman Keshra and others (1978) KLR, the Court of Appeal considered the question of unjust enrichment and legal implications attendant thereto as follows:
“Most mature systems of law have found it necessary to provide, outside the fields of contract and civil wrongs, for the restoration of benefits on grounds of unjust enrichment. There are many circumstances in which a defendant may find himself in possession of a benefit which, in justice, he should restore to the plaintiff.
Obvious examples are where the plaintiff has himself conferred the benefit on the defendant through mistake or compulsion. To allow the defendant to retain such a benefit would result in his being unjustly enriched at the plaintiff’s expense, and this, subject to certain defined limits, the law will not allow ... 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”
31. Further, in the case of Mwangi V Ng'ang'a (Sued as the administrator of the Estate of Adam Nyaga Mwangi) [2025] KEELC 3152 (KLR), the court held as follows:
“In other words, the idea of unjust benefit is intended to prevent a person from retaining money or some benefit derived from another which it is against conscience that he should keep it, and he should, in justice, restore it to the Plaintiff. The gist is that a Defendant, upon the circumstances of the case, is obliged by the ties of natural justice and equity to make restitution….
…Most mature systems of law have found it necessary to provide, outside the fields of contract and civil wrongs, for the restoration of benefits on grounds of unjust enrichment.”
32. Notably, courts have applied equitable principles such as constructive trust, restitution, or proprietary estoppel to prevent situations where one party unfairly benefits at the expense of another. These principles are meant to prevent unjust enrichment, where a person receives money or other benefits but refuses to return the money after the transaction fails.
33. In the instant case, the Appellant’s prayers were not only for breach of contract, but also had an alternative prayer of restitution being the value of the 3 acres excised out of the suit parcel. The Learned Magistrate erred in dismissing the suit without considering whether the Appellant was entitled to a refund or any other equitable relief.
34. Counsel for the Respondent raised an issue that the Appellant argued grounds that were not pleaded in the Memorandum of Appeal, but I find that this was not factual, as the ground for restitution was clearly captured in the Memorandum of Appeal. This is therefore a non-issue.
35. The upshot of the foregoing is that the appeal is hereby allowed, and the Judgment delivered on 2nd July, 2025, is set aside and substituted with an order of refund of the amount paid for the purchase of the 3 acres from the date of filing of the suit on 2nd May 2019, with interest together with costs.