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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the preliminary objection is merited
- 2.whether the Interested Party is a proper party in the suit
- 3.whether the Memorandum of Agreement of sale dated 24th March, 2011 is void by dint of section 6 of the Land Control Act
- 4.whether the present suit is brought before court prematurely by dint of section 6 of the Arbitration Act 1995
- 5.whether Originating Summons under Order 37 Rule 1(1) & (b) is suitable for originating the present suit
- 6.whether the present suit is time barred by dint of section 4(1) of the Limitation of Actions Act
- 7.whether this suit should be struck out
- 8.who pays costs of the Preliminary Objection
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
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land (not expressly invoked in the ruling)
Relief refused
#Striking out of the suit as sought by the 1st Defendant
The court found the objection unfounded; striking out is a drastic remedy and the claim is not a complete sham
Costs
Costs to be in the main suit.
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.
For the foregoing reasons, the court finds that the Preliminary Objection is unfounded and hereby dismisses it.
Costs to in the main suit.
striking out of pleadings is a drastic remedy and should only be resorted to where a pleading is a complete sham
the equitable doctrine of constructive trust and proprietary estoppel are applicable to and supercede the Land Control Act where a transaction relating to an interest in land is void ab initio and unenforceable for lack of consent of the Land Control Board
Issues in the judgment
#The ruling is dated and signed 4th December 2025, while the preliminary objection and submissions are dated February and March 2025; also the numbering of the plaintiff's submissions list (paragraphs 3-5) is internally disordered in the text.
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.