The Unconscionability doctrine - Even an otherwise valid contract may be voided or modified when terms are oppressive or exploitative: The case of Dhiman v Shah (Civil Appeal E380 of 2023) [2025] KECA 1264 (KLR)

Full Case: Dhiman v Shah(Civil Appeal E380 of 2023) [2025] KECA 1264 (KLR)

Procedural History

• The dispute originates from High Court, Nairobi, Commercial Case No. 205 of 1999.
• The respondent (Shah) sued for recovery of loan amounts plus interest and sought sale of property secured by a memorandum of charge.
• In 1999, an ex parte judgment was entered awarding the respondent sums and authorizing sale of the secured land.
• The property was sold by public auction; respondent obtained vesting order; he became registered owner and evicted the appellant.
• The appellant applied to review and set aside the ex parte judgment; this was dismissed.
• Appellant appealed to Court of Appeal (Civil Appeal No. 33 of 2007). In July 2015, the Court of Appeal set aside the ex parte judgment, remitted the case for retrial, deeming the draft defence as filed.
• On retrial, the High Court upheld the agreement, the vesting, and dismissed the counterclaim.
• The appellant (Dhiman) lodged the present appeal (E380 of 2023) challenging the High Court’s decision.

Facts of the Case

• On 17 December 1996, Dhiman and Shah entered a loan agreement: Shah would lend Ksh 13,000,000 in three tranches:
1. Ksh 2,500,000 on or before execution
2. Ksh 2,500,000 on 31 January 1997
3. Ksh 8,000,000 on 2 April 1997
• In fact, only Ksh 7,000,000 was advanced:

• Ksh 2,500,000 on 17 December 1996
• Ksh 2,500,000 on 31 January 1997
• Ksh 2,000,000 on 5 August 1997

• The loan was to carry 36% interest per annum, payable quarterly. The first two tranches were secured by promissory notes and a memorandum of charge over the property LR No. 209/8192/8 (owned by the appellant).
• The appellant defaulted on payments including interest, and by February 1999 had not repaid principal or interest.
• The respondent filed suit in February 1999 claiming Ksh 13,813,132.25 plus interest, and sought sale of the property and deficiency judgment.
• Because the appellant did not enter appearance or defence, interlocutory (ex parte) judgment was entered in 1999, and the property was sold via court process, with the respondent himself bidding and securing registration.
• The appellate history noted above followed, culminating in the 2015 Court of Appeal’s order setting aside the ex parte judgment and remitting for retrial.
• On retrial, the High Court found the loan agreement valid, upheld the security, and held appellant’s counterclaim time‑barred, among other findings.

Issues on Appeal

The Court of Appeal distilled the grounds into four main questions:

1. Whether the vesting order and consequential orders remained valid after the ex parte judgment was set aside in 2015.
2. Whether the loan agreement was enforceable, considering alleged deviations from its terms, illegality, or unconscionability.
3. Whether the respondent’s suit was premature, i.e., filed before the contractual time for repayment had arisen.
4. Whether the appellant’s counterclaim was time‑barred or otherwise valid.

Additionally, issues of whether the interest rate was unconscionable or illegal under the Banking Act, whether the contract was materially breached or compromised, and whether unjust enrichment principles should apply were also debated.

Holding (Decision)

• The appeal is partly allowed.
• The Court of Appeal set aside the High Court’s orders (19 September 2019).
• The ex parte judgment of 16 September 1999 and all consequential orders (including vesting order) were declared null and void by virtue of their being based on the ex parte judgment which had been set aside.
• The respondent’s title to LR No. 209/8192/8 is revoked; the land register is to be rectified in favour of the appellant.
• The appellant is ordered to pay the respondent Ksh 4,000,000 (the outstanding loan sum) with interest at court rates from 19 September 2019.
• Should the appellant fail to pay, the suit property may be sold by public auction for recovery of the debt.
• Because both parties succeed in part, no costs order is made.

Reasoning

1. Effect of setting aside ex parte judgment & consequential orders
• The Court held that setting aside the ex parte judgment in 2015 logically nullified all orders that emanated from it (sale, vesting, transfers).
• The respondent argued the sale and vesting orders remained valid because they were never appealed or set aside by the appellant. He contended that special procedure should have been invoked to challenge them (Orders of Civil Procedure).
• The Court rejected this, reasoning that because the foundation (ex parte judgment) was voided, its offspring orders cannot stand.
• The Court conceded that the 2015 judgment did not expressly mention “consequential orders,” but held that the intent to set aside all dependent orders was implicit.
2. Enforceability of the loan agreement; Unconscionability
• The appellant challenged the contract on multiple grounds:
  a) Material deviation / compromise — the fact that only Ksh 7 million was disbursed (not the full 13 million) and deviations in timing.
  b) Illegality under the Banking Act (i.e., unauthorized lending).
  c) Unconscionable interest terms (36% per annum, compounded quarterly) leading to extreme escalation.
• On material deviation: The Court held that the deviations did not render the entire contract unenforceable. The appellant was first in material breach by failing to meet interest obligations, thus justifying the respondent’s refusal to advance further funds.
• On illegality under the Banking Act: The Court found no evidence that the respondent was operating as a banking institution or that the agreement contravened statutory restrictions. Ordinary individuals may lend to one another, unless proven otherwise.
• On unconscionability: The Court held the terms were unconscionable, notably the compound interest over many years resulting in astronomical figures far disproportionate to the principal. The Court declared the agreement void on that ground.
3. Prematurity / timing of suit
• The appellant argued the suit was prematurely filed (before contract matured). The Court addressed this but found that the appellee was entitled to act when default and nonpayment became clear, especially given the appellant’s failure to meet interest obligations.
4. Counterclaim / time-bar
• The High Court had held the appellant’s counterclaim was time-barred, treating it as a contractual claim subject to a 6-year limitation. The appellant argued his counterclaim was proprietary (seeking restitution of land) and not subject to the limitation.
• The Court of Appeal considered that issue moot in light of its primary holding (that the vesting order is void and contract unenforceable).
5. Unjust Enrichment / Restitution
• Since the agreement is void, the Court did not merely leave the parties as they were. To prevent unjust enrichment, the Court ordered Dhiman (appellant) to repay Ksh 4,000,000 (the amount he had actually received and not repaid) with interest at court rates.

Legal Principles & Doctrines Applied

• Unconscionability doctrine: Even an otherwise valid contract may be voided or modified when terms are oppressive or exploitative.
• Effect of voiding a foundational judgment: When a judgment is set aside, orders dependent on it cannot stand.
• Restitution / unjust enrichment: When a contract is void, equitable doctrines may require recovery or return of value to prevent one party being unjustly enriched.
• Freedom of contract limited by equity: Parties are bound by terms, but courts may intervene when enforcement would result in manifest injustice.
• Limitation of actions: Where counterclaims are based on contract, they may be subject to limitation periods unless they involve proprietary/land rights (though the Court treated that issue as moot).

Disposition / Orders

• The High Court's judgment of 19 September 2019 is set aside.
• The orders and judgment of 16 September 1999 (ex parte) and all consequential orders (sale, vesting, transfers) are declared null and void.
• The respondent’s title to the suit property is revoked; register rectified in favour of appellant
• The appellant is to pay Ksh 4,000,000 with interest from 19 September 2019; failure to pay enables public auction of the property.
• No costs order (since each party succeeds in part).

 Disclaimer: This article is for informational purposes only and does not constitute legal advice.

On striking a sensible balance between honoring contractual obligations (including standard conditions), enforcing time clauses, and upholding fairness via procedural safeguards (like notice) in land sale/purchase transactions: The Case of Ogutu v Anjichi [2025] KEHC 3875 (KLR)

Full case Ogutu v Anjichi [2025] KEHC 3875 (KLR) (High Court, Siaya)

Case Summary

• Parties and Court: Walter Ominde Ogutu (Appellant) vs Stephen Naman Anjichi (Respondent), High Court at Siaya; appeal from a magistrate’s court judgment.
• Lower court judgment: In Siaya CMCC No. 39/2023, delivered 29 February 2024, in favour of the respondent, awarding Kshs 2,000,000.
• Key contract: A sale agreement dated 26 October 2018 for land (parcel East Gem/Uranga/439), for Kshs 5,000,000. Deposit of Kshs 2,000,000 paid; balance Kshs 3,000,000 payable within 90 days.
• Facts:
• The purchaser (respondent) did not pay the balance within the 90-day period.
• He requested a 3‑month extension orally, but no written proof of extension.
• The vendor (appellant) sold the land to a third party.
• Agreement was subject to the Law Society of Kenya (LSK) Conditions of Sale, 1989 edition.
• Grounds of Appeal: The appellant raised among others:

1.                  The respondent breached first, so vendor shouldn’t refund deposit.

2.                  Misuse of LSK 1989 vs 2015 conditions.

3.                  Appellant entitled to damages and 10% of purchase price (or 15%) because respondent breached and no counterclaim was filed, etc.

• Decision of the High Court: Appeal dismissed with costs. The High Court held:
• Parties were bound by LSK Conditions of Sale 1989 since the contract expressly said so.
• Vendor was required under clause 4(7) LSK 1989 to give 21 days’ notice to purchaser to complete before selling to a third party. He did not do this.
• Because vendor failed to give required notice, he cannot keep the deposit and benefit from sale to a third party. Vendor must refund the deposit.
• Appellant’s claims for damages are rejected (no counterclaim; having sold to third party means he benefitted; he has not shown loss etc.).

Legal Issues

1. Interpretation and application of the contract & LSK Conditions — identifying which edition, what obligations (e.g. notice), whether “time is of the essence”.
2. Breach of contract and consequences — who breached first, whether vendor was justified in rescinding or selling to third party, and what remedies are available.
3. Restitution / deposit refunds — when a deposit must be refunded, or whether vendor may keep deposit (or part) depending on breach, whether vendor can also receive proceeds from third party sale.
4. Damages and counterclaims — whether damages can be awarded absent a counterclaim; whether a vendor who breaches can claim damages; whether claim is too late or not supported.

Reasoning and Evaluation

• Binding nature of the agreed terms: The High Court correctly emphasised that parties are bound by whatever contract they signed, including any incorporated standard terms like LSK Conditions. They cannot later pick a term edition more favorable just because circumstances change. This underlines the doctrine of pacta sunt servanda (contracts must be kept) and respects freedom of contract, but also fairness by enforcing agreed obligations.
• Notice requirement and its significance: The LSK Conditions of Sale (1989), particularly clause 4(7), require a notice of 21 days before vendor can sell to third party. The court found the vendor did not comply with this. The failure is material: such notice requirement might be a condition precedent before vendor can resile or treat contract as at an end. Without notice, the purchaser is deprived of the chance to complete. The court therefore found vendor’s act of selling to third party without notice to be wrongful, despite the respondent’s failure to pay on time.
• “Time is of essence”: The contract stated time was of essence. That means strict performance of time conditions is required. Even so, time being of essence does not necessarily discharge all obligations without notice, particularly where standard conditions (like LSK Conditions) impose specific procedural safeguards (like notice before sale to third party). The court’s reasoning suggests that time being of essence gives vendor the right to expect timely performance, but does not obviate the obligation of notice if required under the conditions. The balance is between strictness and fairness.
• Deposit refund and double benefit: The court highlights it would be “unconscionable” for vendor to both keep deposit and sell property to third party, keeping proceeds, without allowing purchaser opportunity to perform. The remedy is restoring parties to the position before the breach (restitutio in integrum). Here, refund of deposit is appropriate.
• Damages and counterclaim necessity: The appellant wanted damages and a percentage (10%) of purchase price, loan interest, etc. The court found no counterclaim filed. Under Kenyan civil procedure, a defendant must plead a counterclaim if seeking relief, especially affirmative relief like damages. On the evidence, the vendor did not show losses in a way that warranted damages. Also, vendor’s benefit of selling to third party undermines his claim of loss (since he presumably recovered value). So, damages were refused. This is consistent with principle that damages are compensatory: you must show loss, not just potential/inferred.

Critique: Strengths and Weaknesses of the Judgment

Strengths:

• The judgement is clear and logically consistent. The court properly adhered to established legal principles: contractual terms binding, notice requirement under standard conditions, procedural requirements for counterclaims, restitution.
• It upholds fairness: purchaser is afforded procedural protections under standard terms. The vendor is not allowed opportunistic behaviour.
• The decision reinforces predictability in contract law: parties cannot later shift to more favorable standard terms (i.e. different editions) unless the contract provides so.

Potential Weaknesses or Open Questions:

• Proof of notice requirement vs vendor’s knowledge of purchaser’s breach: While time was of the essence and purchaser breached by missing date, the requirement to give notice is procedural. The court did not consider whether there was any implied waiver, or whether the vendor’s behaviour could be interpreted as acquiescence to lighter timing. For example, respondent claimed to have asked for extension. The court dismisses it for lack of proof. But perhaps more scrutiny of whether vendor’s conduct suggested extension or tacit acceptance could have been done.
• Extent of damages claim: The vendor might argue that keeping the deposit (if appropriate) plus sale proceeds are not sufficient to cover the full loss (e.g. difference in sale price, or other costs). The court did not engage deeply with the possibility of quantifying loss beyond deposit, but since no counterclaim, the procedural barrier stands. One might wish the vendor’s attorney had anticipated and structured pleadings differently.
• Choice of edition of LSK Conditions: The Court accepts the 1989 edition because it is stated in contract. But there may be arguments about whether the parties understood what “LSK Conditions of Sale 1989” entailed, especially given that respondent said he did not know those conditions. Does that ignorance matter? Under contract law, generally ignorance of terms is not excuse unless misrepresented. But perhaps there could be public policy considerations if standard conditions are very onerous. The court did not explore those.
• Alternative outcomes or mitigation of losses: The possibility that vendor could mitigate loss, or that purchaser could be given further opportunity, or that partial retention of deposit (as liquidated damages or forfeiture) could be permissible under some standard conditions, is not addressed in detail. The case might have benefited from comparing similar cases where partial forfeiture or conditional deposits are honored under certain conditions.

Doctrinal & Comparative Implications

• Standard forms and incorporated terms: This case reinforces that standard conditions (such as LSK Conditions) are legally effective when properly incorporated. This aligns with established common law in Kenya and comparative jurisdictions. E.g. the doctrine from Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd (UK case) or Kenyan precedents that incorporate standard conditions by contract.
• Time is of the essence: The case reaffirms that declaring time as of the essence gives the vendor or seller right to rely on deadlines strictly, but it does not by itself relieve other contractual protections or obligations such as giving notice under standard conditions.
• Restitution vs breach remedies: The decision is consistent with doctrines of restitution: when contract fails, restoring parties to pre‑contract position is appropriate. Also illustrates that deposit is not always forfeited if party in fault does not fulfill all procedural requirements.

Practical Implications & Lessons for Practitioners

• Ensure that standard conditions of sale, especially with edition dates (1989 vs 2015 etc.), are clearly stated in contract; parties should understand what they commit to.
• If time is of the essence, ensure that deadlines are met, or that any extensions or waivers are properly documented in writing, especially when standard conditions require notice.
• Vendors/sellers should always ensure they comply with notice requirements before selling to third party, or else risk having to refund deposit even if purchaser defaulted.
• For parties seeking damages, ensure that counterclaims are properly pleaded; ensure evidence is in record showing actual loss, not just assertions.
• Purchasers need to act promptly or at least seek documented extension; and know the content of standard conditions, because ignorance may not be accepted.

Conclusion & Opinion

In my view, the High Court’s decision is well‑reasoned and aligns with prevailing legal doctrine. It strikes a sensible balance between honoring contractual obligations (including standard conditions), enforcing time clauses, and upholding fairness via procedural safeguards (like notice).

The outcome — that the vendor must refund the deposit because he did not give the required notice before selling to a third party — is justifiable under the contract’s terms and under general principles of equity. On the damages issue, the vendor’s failure to plead a counterclaim, and the lack of clear evidence of loss, supports the court’s refusal to grant the damages claimed.

One might argue that the vendor should have been more forthright and careful in drafting, and that the respondent’s request for extension should have been better documented; but those are procedural pitfalls rather than legal errors of the court.

 

 Disclaimer: This article is for informational purposes only and does not constitute legal advice.

Understanding Limited Grants and Their Applicability in the Kenyan Succession Law Context

1. Introduction

The Law of Succession Act (Cap. 160) governs the administration and distribution of the estates of deceased persons in Kenya. Upon death, no individual has automatic authority to deal with the estate of the deceased unless such authority is conferred through a valid grant of representation—either grant of probate (in case of a valid will) or grant of letters of administration (in cases of intestacy or invalid wills).

Any act of dealing with the estate without lawful authority is deemed intermeddling, which is prohibited under Section 45 of the Act. However, due to practical and often urgent needs—such as the maintenance of dependants, pending litigation, or the need to preserve perishable assets—the law recognises the issuance of limited grants to enable specific acts pending the issuance or confirmation of a full grant.

In legal terms, a "grant" refers to the judicial confirmation of authority allowing a person (administrator or executor) to act in respect of a deceased person’s estate. Limited grants, as provided under Rule 36 of the Probate and Administration Rules and Schedule 5 of the Act, offer narrow and specific mandates, unlike full grants which empower administrators to comprehensively manage and distribute the estate.

This paper explores the various types of limited grants, their legal basis, and their practical application within the Kenyan succession framework, supported by relevant case law.

2. Concept and Nature of Limited Grants

Limited grants are forms of representation that confer only restricted authority over the deceased’s estate—whether in respect of time, purpose, or property. These grants are issued interim, special, or temporary, pending the issuance of full letters of administration or probate. The intention is to ensure that the estate does not suffer waste or become subject to competing claims and intermeddling during procedural delays.

According to Schedule 5 of the Law of Succession Act and relevant jurisprudence, limited grants may take various forms:

3. Grants Limited as to Purpose

(a) Grant ad colligenda bona defuncti

This is arguably the most common form of limited grant. It is issued for the purpose of collecting and preserving the deceased’s estate where urgent action is required, especially before the issuance of a full grant.

Such a grant is strictly limited: it does not confer authority to distribute, invest, or dispose of estate assets, even where a sale may be commercially advisable. It is mainly protective in nature, allowing an applicant to safeguard estate property against loss, mismanagement, or third-party encroachment.

Case Law:

In Re Estate of Mary Syokwia Kyalili [eKLR], the court underscored that where circumstances warrant immediate action and it is not feasible to process a full grant, a grant ad colligenda bona may be issued. Similarly, in Mary Waithera v Ann Ndegwa & Another [eKLR], the court recognised the urgency of obtaining such a grant to cater for pressing needs such as school fees for dependants.

In Re Estate of Daniel A. Korir Kipkurui [eKLR], the High Court granted a limited grant to the petitioner specifically to withdraw funds from the deceased’s account to meet educational expenses of minor dependants. The court, citing Article 53(1) of the Constitution of Kenya 2010, held that the right to education is a fundamental constitutional entitlement, justifying the urgency and issuance of the limited grant.

Similarly, in Re Estate of Mary Wanja Wairimu [eKLR], the court employed its inherent jurisdiction under Section 47 of the Act to order the preservation of rental income from the deceased’s property by directing that rents be deposited into a joint account managed by counsels of the parties, pending the issuance of a full grant.

4. Grant for Special Purposes: Grant ad litem

This grant is issued for the specific purpose of instituting or defending a legal suit on behalf of the estate. It is particularly relevant where the estate is a party to a cause of action that arises posthumously or was ongoing at the time of death.

This limited grant does not permit the holder to distribute the estate or deal with its assets beyond the scope of the litigation.

Jurisprudence:

In Re Estate of Jennifer Kusuro Musiwa [eKLR], the High Court held that a grant ad litem enables the grantee to pursue a cause of action in which the deceased had a standing. The court emphasised that its purpose is procedural: to provide the legal personality necessary for the estate to sue or be sued.

Likewise, in Re Estate of Helena Wangechi Njoroge (2015) [eKLR], the court held that a grant ad litem is not necessary for filing a succession cause per se, but is strictly required for civil litigation purposes where legal standing must be established.

5. Grants Limited as to Property

(a) Grant pendente lite

This is a temporary grant issued during ongoing litigation regarding the validity of a will, entitlement to the estate, or identity of the rightful administrator. Its core purpose is to preserve the estate until the legal dispute is resolved.

The person appointed under this grant does not have authority to distribute the estate and acts under the court’s supervision. This safeguard ensures neutrality and protection against wastage or misappropriation during contentious proceedings.

(b) Grant de bonis non

This grant arises where an appointed executor or administrator dies or becomes incapacitated before completing administration of the estate. It enables the continuation and completion of estate administration by a newly appointed personal representative.

In Faith Wanjiku Maganjo v Rebean Muriithi Maganjo [eKLR], the court clarified that a grant de bonis non is necessary where the prior administrator failed to complete administration—whether due to death, resignation, or revocation.

6. Grants Limited as to Time

These forms of limited grants arise in situations where the validity or existence of a will is uncertain or pending discovery.

(a) Probate of Copy or Draft of Lost Will

If the original will is lost or destroyed (without any act by the testator), but a draft or copy exists, probate may be granted limited until the original or authenticated copy is produced.

(b) Probate of Copy Where Original is Abroad

Where a will is located outside Kenya and is being withheld, probate may be granted on a transmitted copy, pending the production of the original.

(c) Administration Until Will is Produced

Where there is a belief that a will exists but cannot be found immediately, a temporary grant may be issued limited until the will is located and validated.

7. Conclusion and Legal Opinion

Limited grants are a critical procedural mechanism within the Kenyan succession framework, balancing the need for legal authority with practical urgency. They protect estates from intermeddling, wastage, and third-party abuse, especially in the delicate period before full grants are issued.

In the Kenyan context, where succession matters often face delays—whether due to family disputes, procedural backlog, or document retrieval—limited grants serve to uphold constitutional and statutory rights of dependants. Particularly, children’s rights under Article 53 of the Constitution, such as the right to education and maintenance, underscore the need for a responsive and purposive application of limited grants.

For legal practitioners and estate planners, it is advisable to ensure:

• Timely filing of succession causes;
• Proper safeguarding of original wills (preferably with legal counsel);
• Immediate application for limited grants where necessary to avert loss or litigation;
• Communication between testators and executors to facilitate efficient administration upon death.

Thus, limited grants are not mere procedural tools but are a judicial balancing mechanism, ensuring the estate remains protected, pending the final determination of rights and obligations in succession matters.

 Disclaimer: This article is for informational purposes only and does not constitute legal advice.

Court of Appeal Clarifies Zoning and Development Rights: A Case analysis of Civil Appeal No. E160 of 2025: Claire Kubochi Anami & Others (Suing as Officials of Rhapta Road Residents Association) v County Executive Committee Member, Built Environment & Urban Planning, Nairobi City County & 19 Others

Executive Summary

On 19 September 2025, the Court of Appeal of Kenya issued a landmark judgment that has significantly reshaped the legal and regulatory environment for urban development in Nairobi. The case concerned the legality of high-rise developments along Rhapta Road in Westlands, with wide-ranging implications for zoning, planning instruments, and the statutory duties of Nairobi City County under Kenyan law.

The Court's ruling clarified the zoning status of Rhapta Road, upheld developers’ rights to proceed with high-rise projects (up to 20 floors), and issued a structural interdict compelling Nairobi City County to finalize and gazette lawful zoning plans. The case exposed critical failings in urban governance and has prompted judicially mandated reform within a strict six-month timeline.

The judgment provides much-needed certainty to investors and developers navigating the Nairobi real estate market.

The Case: A Much-Needed Clarification

The Court of Appeal directly confronted the "structural governance gap" that has undermined lawful urban planning in Nairobi. The judgment is notable not only for its substantive outcomes, but also for the judicial remedies applied—in particular, the use of a structural interdict, a rare but powerful constitutional tool.

Key Takeaways from the Judgment

1. Recognition of a Structural Governance Failure

• The Court acknowledged that Nairobi has no properly gazetted zoning frameworks under the Physical and Land Use Planning Act (PLUPA), 2019.
• The 2004 Zoning Guidelines were declared legally obsolete, having never been formalised under current statutory procedures.
• This has created a legal vacuum that enables discretionary, inconsistent decision-making, violating the rule of law and principles of sustainable urban development.

2. Application of a Structural Interdict

• Recognising that ordinary declaratory or injunctive relief would be insufficient, the Court issued a structural interdict — a supervisory constitutional remedy designed to address systemic violations.
• This interdict compels Nairobi City County to take specific legal and administrative actions, within a judicially supervised timeframe, to cure the ongoing illegality.
• This reflects evolving Kenyan jurisprudence aligned with Article 10, Article 174, and Article 43 of the Constitution, and draws from international best practices in urban governance and intergenerational equity.

3. Zoning Clarification – Rhapta Road is Zone 3C

• The Court partially allowed the developers’ cross-appeal, correcting the trial court’s misclassification of Rhapta Road.
• It affirmed that Rhapta Road is located within Zone 3C, as defined under the 2021 Nairobi Development Control Policy.
• Consequently, the maximum permitted height for developments along Rhapta Road has been increased from 16 floors (as previously assumed) to 20 floors, subject to infrastructure and environmental compliance.

4. Mandates Issued to Nairobi City County

Under the structural interdict, the Court issued a binding directive to Nairobi City County, including the following orders:

a. Gazette Lawful Zoning and Planning Instruments

• The County must complete, adopt (via County Assembly), and gazette a comprehensive Local Physical and Land Use Development Plan, in compliance with Sections 44–58 of PLUPA, 2019.
• Deadline: Six (6) months from the date of the judgment.

b. Conduct Meaningful Public Participation

• All planning processes must include genuine public participation, as mandated under Article 10 and Article 69(1)(d) of the Constitution, and Section 5 of PLUPA.

c. File Periodic Compliance Reports

• A progress report must be filed with the Court within three (3) months, and a final compliance report within six (6) months, allowing the judiciary to maintain oversight.

Legal Status of Existing and Pending Approvals

Pending formalisation of the zoning frameworks, the Court issued practical guidance to protect investment certainty and legal continuity:

• Valid Existing Approvals: All lawfully issued development approvals and NEMA licences already acted upon remain valid and enforceable. There will be no retroactive invalidation or demolition.
• Pending Applications: These will be assessed under PLUPA 2019 and its regulations, guided by the 2021 Development Control Policy, pending its formal approval and gazettement.

Implications for Developers, Investors, and Urban Planners

✅ Greater Legal Certainty

• The decision provides developers with clear zoning status and legal justification to proceed with 20-floor developments in Zone 3C, eliminating long-standing ambiguity.

✅ Protection of Existing Investments

• The Court has safeguarded the rights of investors who have acted in good faith under lawfully issued approvals, reinforcing protections under Article 40 (Right to Property) of the Constitution.

✅ Judicial Supervision of Urban Planning Reform

• For the first time, the Court has issued a time-bound, enforceable mandate on Nairobi City County to undertake systemic planning reform, supported by judicial supervision.

✅ Opportunity for Stakeholder Engagement

• Developers, landowners, and community groups now have a critical window to engage in the formulation of Nairobi's new zoning and land use policies.

✅ Policy Reform Aligned with Global Standards

• The judgment reflects international best practices in sustainable urban planning and urban rule of law, consistent with UN-Habitat, ICLEI, and OECD guidelines.

Conclusion

The Court of Appeal’s decision in Civil Appeal No. E160 of 2025 is a transformational moment in Kenya’s urban law. It confirms that Nairobi’s development must be guided by law, not discretion, and lays the groundwork for modern, enforceable, and inclusive zoning policies.

By confirming developers' rights, protecting lawful approvals, and ordering time-bound governance reforms, the Court has restored legal certainty, predictability, and public accountability in one of Africa’s fastest-growing cities.

We remain at the forefront of advising clients on strategic development planning, regulatory compliance, and urban land use litigation in Kenya.

 Disclaimer: This article is for informational purposes only and does not constitute legal advice.

On reinforcing the centrality of transparency, equality, and legal compliance in succession matters: The Case of Njenga Mwaura Ngoima v Phoebe Wambeti & Another (Civil Appeal E455 of 2023 [2025] KECA 1477 (KLR)

Full Case: Njenga Mwaura Ngoima v Phoebe Wambeti & Another (Civil Appeal E455 of 2023 [2025] KECA 1477 (KLR)

I. INTRODUCTION

This legal opinion analyzes the decision of the Court of Appeal in the above-captioned case involving succession to the estate of the late Geofrey Mwaura Ngoima, who died intestate in 1984. The appeal arose from a High Court decision that revoked a confirmed grant of letters of administration on grounds of concealment, material non-disclosure, and procedural defects under the Law of Succession Act (Cap 160 Laws of Kenya).

 

II. FACTUAL BACKGROUND

1. The deceased passed away on 21 October 1984.
2. In 1999, two sons (Njenga Mwaura Ngoima and Geoffrey Kangethe Ngoima) petitioned for letters of administration, listing only select family members.
3. The grant was confirmed in December 2000 with a specific mode of distribution.
4. In 2005 and 2015, two daughters (Phoebe Wambeti and Edith Waithera) challenged the grant, seeking revocation based on:
• Omission of beneficiaries;
• Alleged oral will;
• Threats of eviction and inequitable distribution.

III. LEGAL ISSUES

The Court of Appeal considered several legal and procedural questions:

1. Whether the confirmed grant was properly revoked under Section 76 of the Law of Succession Act.
2. Whether the deceased had a valid oral will meeting the statutory requirements.
3. Whether intestacy law under Section 38 was applicable.
4. Whether omission of the daughters constituted fraudulent concealment.
5. Whether allegations of latent bias and procedural unfairness affected the fairness of proceedings.

IV. LEGAL FRAMEWORK

Key legal provisions invoked:

• Section 76, Law of Succession Act: Grounds for revocation of grant (fraud, concealment, procedural defect).
• Section 51, Law of Succession Act: Requirement to list all surviving beneficiaries.
• Section 38, Law of Succession Act: Equal distribution in cases of intestacy.
• Sections 9 & 10, Law of Succession Act: Formal requirements for oral wills (must have two competent independent witnesses).
• Article 27, Constitution of Kenya: Equality and non-discrimination.
• Article 60, Constitution of Kenya: Equitable access and rights to land.

V. ANALYSIS OF JUDICIAL FINDINGS

1. Revocation of the Grant (Section 76 LSA)

• The High Court and Court of Appeal agreed that the omission of five daughters from the petition constituted material non-disclosure and concealment.
• The petition was defective in substance, warranting revocation under Section 76.
• The long lapse of time (over 20 years) did not preclude revocation, as no statutory limitation applies where fraud or concealment is shown.

2. Oral Will Claim

• The claim of an oral will was rejected for lack of statutory compliance:
• The petitioners initially applied under intestacy, contradicting the existence of a will.
• No competent independent witnesses were produced as required under Sections 9 and 10 of the Act.
• No sufficient evidence substantiated the alleged oral instructions of the deceased.

3. Applicability of Intestacy Law

• Having found the will invalid, the Court upheld the application of Section 38, affirming equal distribution among all children, regardless of gender or marital status.
• The Court emphasized that statutory succession law overrides customary norms in intestate matters.

4. Procedural Fairness and Bias Allegation

• The appellant's claim of latent bias (based on a prior relationship between judge and counsel) was found to be unsubstantiated.
• The issue had not been raised at the trial court, and no evidence of actual bias was shown.
• The Court also held that delay in filing objections (in 2005 and 2015) was not fatal to the respondents' case.

VI. STRENGTHS AND WEAKNESSES OF ARGUMENTS

Appellant’s Position:

• Weaknesses:
• Failed to meet evidentiary burden on oral will.
• Did not disclose the will in the original petition, undermining credibility.
• Allegations of bias were procedurally defective and lacked merit.
• Lacked legal grounding for claiming that equitable distribution had occurred via consent.

Respondents’ Position:

• Strengths:
• Properly invoked Section 76 with clear evidence of omission of beneficiaries.
• Demonstrated violation of Section 51 and constitutional principles of equality.
• Provided corroborated evidence of exclusion from the process.

VII. DOCTRINAL AND PRACTICAL IMPLICATIONS

1. Revocation Power is Ever-Present: Courts may revoke grants at any time if fraud, concealment, or defect is shown—time delay is not fatal.
2. Strict Compliance with Oral Will Provisions: Oral wills are disfavored unless statutory requirements are meticulously met.
3. Customary Practices Do Not Trump Statute: Gender-based exclusions, even if culturally sanctioned, are invalid under statutory and constitutional law.
4. Equality Under Article 27: Succession laws are to be interpreted and enforced in line with constitutional values of equality and non-discrimination.
5. Transparency Obligations in Succession Petitions: All children must be disclosed—failure to do so exposes administrators to revocation and even civil liability.

VIII. CONCLUSION AND OPINION

In light of the above:

• The High Court's decision to revoke the grant was correct and within the law.
• The Court of Appeal properly dismissed the appeal, reinforcing the centrality of transparency, equality, and legal compliance in succession matters.
• The case underscores the need for personal representatives to act honestly, inclusively, and in accordance with statutory requirements.
• All children of the deceased—sons and daughters, married or not—have equal rights to inherit under Kenyan law.

IX. RECOMMENDATIONS

1. Practitioners should advise clients that:
• Succession petitions must disclose all beneficiaries.
• Alleged oral wills are subject to strict proof.
2. Judiciary may consider encouraging mediation in succession disputes to avoid decades-long litigation and family division.
3. Legislators or judicial training bodies may wish to clarify the scope of Section 76 further in relation to timing and acceptable delays.