Cherutich v Kebut (Environment and Land Appeal 10 of 2023) [2025] KEELC 179 (KLR)
The bottom line
#The Environment and Land Court in Kabarnet confirmed that a land buyer who paid in full and occupied the land for over 20 years keeps it, even without Land Control Board consent.
What this practically means
#Executive summary
#Key legal issues
#Mode of instituting a claim for adverse possession
A defendant sued for eviction need not institute a separate originating summons under Order 37 Rule 7; the claim may be raised by defence and counterclaim
The respondent's claim for adverse possession was raised in response to the appellant's suit seeking eviction. Following Chepkwony v Malenya and Kiptum Kosgei, the court held that where a party is sued for vacant possession, the claim may be brought by defence or defence and counterclaim. The court also noted there was no dispute as to the subject matter of the suit.
Effect of failure to obtain Land Control Board consent
The transaction was not rendered void where the seller received the full purchase price and gave possession; voidness under section 9(2) applies only where consent is sought and refused
Applying Aliaza v Saul, the court adopted the Macharia Mwangi Maina line of authority holding that constructive trust and proprietary estoppel apply to land subject to the Land Control Act, read through section 7 of the Sixth Schedule to the Constitution. A seller who received full payment and gave possession cannot rely on absence of consent to renege; that would amount to unjust enrichment.
Co-existence of adverse possession and possession arising from sale
The claim that adverse possession and possession pursuant to sale cannot co-exist did not defeat the respondent's counterclaim on these facts
The court found no merit in the appellant's contention, having found as a fact that the respondent paid the full purchase price of Kshs.60,000/-, took possession, developed the land and enjoyed peaceful occupation for over 20 years. The appellant failed to prove the alleged balance of Kshs.14,000/-.
Departure from pleadings
Ground 4 of the appeal (ambiguity of the agreement and re-writing of contract) was a departure from the appellant's pleadings and could not be argued
A review of the plaint showed the plaintiff had either expressly or by implication raised the issues in ground 4 in his own pleadings; the complaint about ambiguity was thus a departure from his pleadings, and parties are bound by their pleadings.
Legal principles established
#- Where a party is sued for vacant possession, an adverse possession claim may be raised by defence or defence and counterclaim without complying with Order 37 Rule 7 requirements
- A seller who voluntarily entered a sale agreement, received the entire purchase price and handed over possession cannot void the contract merely for lack of Land Control Board consent; the transaction can only be avoided if consent was sought and refused under section 9(2) of the Land Control Act
- Parties are bound by their pleadings; a ground amounting to a departure from pleadings cannot lawfully be argued on appeal
- A first appellate court will not ordinarily interfere with findings of fact by the trial court unless they were based on no evidence, on a misapprehension of the evidence, or on wrong principles
Court orders
#- 1.The appeal was dismissed with costs to the respondent
- 2.Orders accordingly (the judgment of the lower court dismissing the plaintiff's suit and allowing the defendant's counterclaim stands)
- On appeal from
- Eldama Ravine RM's Court (RMC ELC)
- ELC Case No. 11 of 2020
- Jurisdiction invoked
- First appellate jurisdiction over the subordinate court (suit originally filed by plaint dated 30th June 2023 in Eldama Ravine RMC ELC Case No. 11 of 2020)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (3)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Godfrey Mwangi Kimani (Suing as a legal representative of the estate of Kimani Mina (Deceased)) v John Muniu, Mahiira Hosiing Company Limited & Johnson Mwangi Gachoya[2026] KEELC 6133 (KLR)30 Sept 2026
- Fred Genga Atieno v Nancy Adhiambo Oswera & Owuor Okoth Alex[2026] KEELC 6167 (KLR)29 Sept 2026applied
- Naker & 3 others v Thairu (Environment and Land Case 12B of 2023) [2026] KEELC 3708 (KLR)[2026] KEELC 3708 (KLR)15 Jun 2026
Cite this brief
#Cite this brief
Caselaw, "Cherutich v Kebut (Environment and Land Appeal 10 of 2023) [2025] KEELC 179 (KLR)", Case Analysis (2025). Eldama Ravine RMC ELC Case No. 11 of 2020 (appeal therefrom, ELC Appeal, Kabarnet). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/179/eng@2025-01-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.