Cheruiyot v Adero (Sued on his Behalf and as the Legal Administrator of the Estate of the Late Michael Adero Mudhune) & another; Rao (Interested Party) (Environment and Land Case E014 of 2023) [2025] KEELC 8509 (KLR)
The bottom line
#A Kenyan court dismissed a landowner's attempt to throw out a buyer's lawsuit, confirming that buyers in possession of land are protected even without Land Control Board consent.
What this practically means
#Executive summary
#Key legal issues
#Whether the 1st Defendant's preliminary objection striking out the suit was merited
The preliminary objection was dismissed in its entirety as unfounded
The court noted that no submissions were filed by the Defendants, leaving the grounds bare and un-expounded. Grounds 2 to 5 required consideration of facts and evidence on the sale agreement, which cannot be resolved on a preliminary objection. The plaintiff pleaded he was put in possession, engaging equitable principles. Courts should endeavour to sustain suits rather than terminate them summarily, and the claim was not a complete sham.
Whether the Land Control Act renders the agreement void despite the plaintiff being put in possession
Equitable doctrines of constructive trust and proprietary estoppel supersede the Land Control Act where a purchaser was put in possession
Relying on the Court of Appeal decision in Willy Kimutai Kitlit v Michael Kibet, the court held that since Article 10(2)(b) elevates equity to a constitutional principle, constructive trust and proprietary estoppel apply to and supersede the Land Control Act where a transaction is void ab initio for lack of consent, and courts may award damages or specific performance. The plaintiff pleaded possession, engaging these doctrines.
Whether the Interested Party was properly joined
The Interested Party was properly joined as she claims an interest in the suit land
No objection to the joinder was raised by the Interested Party herself. The plaintiff demonstrated that she claims an interest in the disputed property and holds its title deed, meeting the qualifications for joinder of an interested party set out in Communication Commission of Kenya v Royal Media Services.
Legal principles established
#- A preliminary objection can only be raised on a pure point of law, not on facts requiring evidence
- The equitable doctrines of constructive trust and proprietary estoppel supersede the Land Control Act where a transaction is void for lack of consent
- Striking out pleadings is a drastic remedy resorted to only where a pleading is a complete sham
Court orders
#- 1.The Preliminary Objection dated 3rd February, 2025 is dismissed
- 2.Costs to be in the main suit
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land (not expressly invoked in the ruling)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cheruiyot v Adero (Sued on his Behalf and as the Legal Administrator of the Estate of the Late Michael Adero Mudhune) & another; Rao (Interested Party) (Environment and Land Case E014 of 2023) [2025] KEELC 8509 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8509/eng@2025-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.