Cherus v Rono & another
The bottom line
#The Court of Appeal confirmed that even an unwritten land sale, proven by conduct, can give the buyer's family ownership through a constructive trust.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the respondents proved a sale and purchase agreement for the suit land
- 2.Whether the trial court erred in finding a constructive trust arising from the conduct of the parties
- 3.Whether the appellant's father fraudulently and unjustly enriched himself by registering both resultant titles in his own name
Key legal issues
#Whether the respondents proved a sale and purchase agreement
The validity of the sale had already been determined by the Land Disputes Tribunal in 1988 in a decision never challenged; that finding informed the court's conclusion.
The respondents pleaded purchase and fraud. The court found the tribunal proceedings, in which the appellant's father acknowledged the sale and receipt of the purchase price, conclusively established the sale. That unchallenged tribunal decision meant the validity of the sale agreement was res judicata and not open to relitigation on appeal.
Whether a constructive trust arose from the parties' conduct
Yes. The conduct of receiving money, executing the consent application, obtaining consent to subdivide and transfer, and giving possession met the threshold for a constructive trust.
Relying on Macharia Mwangi Maina, Twalib Hatayan and MNK v POM, the court held that a constructive trust based on common intention may be inferred from conduct. The appellant's father's conduct - receiving Kshs.9,600, signing the Land Control Board application and mutation forms, and placing the respondents' father in possession - showed he held the land for the respondents' benefit.
Whether the appellant's father's registration of both titles in his own name was fraudulent
Yes. Taking advantage of the respondents' father's death before completion to transfer the property to himself imputed fraud and unjust enrichment.
The court found from the sequence of events that the appellant's father exploited the death of the respondents' father before completion of the transaction to register both parcels in his own name. Guided by Katende v Haridas on imputed fraud, the court held this amounted to unjust enrichment justifying nullification of the transfer.
Legal principles established
#- On a first appeal, the Court of Appeal must reconsider and evaluate the evidence itself and draw its own conclusions, while making due allowance for not having seen or heard the witnesses.
- A constructive trust may be inferred from the conduct of parties, including receiving purchase money, executing consent applications and mutation forms, and giving possession, even absent a written agreement.
- Fraud may be imputed on a person who was aware of a fraudulent dealing and condoned it, benefited from it, or used it to deprive another of rights.
Court orders
#- 1.Appeal dismissed with costs to the respondents
- 2.Judgment of the Environment and Land Court dated 25th November 2020 upheld
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Eldoret
- ELC Case No. 373 of 2016
- Jurisdiction invoked
- First appellate jurisdiction over the Environment and Land Court (the judgment does not cite a specific constitutional or statutory provision)
Relief refused
#Appellant's prayer to allow the appeal, set aside the ELC judgment and evict the respondents
All grounds of appeal lacked merit; constructive trust and unjust enrichment established on the evidence
Costs
Appeal dismissed with costs to the respondents
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot is that the appeal is dismissed with costs to the respondents.
Accordingly, we find that all the grounds of appeal have no merit.
Taking all the facts in totality, we agree with the finding by the trial Judge that there existed a constructive trust.
A constructive trust is based on common intention which is an agreement, arrangement or understanding actually reached between the parties and relied on and acted upon by the claimant.
On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusions
Issues in the judgment
#Coram lists 'L NDOLO' but the signature block reads 'L. M. NDOLO'; same judge rendered inconsistently.
Tribunal decision referred to as 1988 in one passage and as Land Tribunal Case No. 1 of 1998 in another.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cherus v Rono & another", Case Analysis (2026). Civil Appeal E161 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1692/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.