https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4468

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT ELDORET** **ELC PETITION No. E001 OF 2026** **IN THE MATTER OF ARTICLES 2, 3, 10, 22, 23, 25, 27, 40, 47, 50, 159, 160 AND 258(1) OF THE CONSTITUTION OF KENYA 2010** **AND** **IN THE MATTER OF ALLEGED CONTRAVENTION OF THE FUNDAMENTAL RIGHTS AND FREEDOMS UNDER ARTICLES 2, 10, 25(C), 40, 47 AND 50 OF THE CONSTITUTION OF KENYA 2010** **AND** **IN THE MATTER OF SECTION 24(a), 25 AND 26(1) OF THE LAND REGISTRATION ACT 2012** **AND** **IN THE MATTER OF ELDORET CHIEF MAGISTRATE ELC No.E224 OF 2025 PERIS JEPKOSGEI KIPTOO VS JOHN YATOR CHEMISTO** **BETWEEN** **JOHN YATOR CHEMISTO** …………………..**PETITIONER/APPLICANT** **VERSUS** **PERIS JEPKOSGEI KIPTOO** …………………………. **1ST RESPONDENT** **THE CHIEF MAGISTRATE COURT – ELDORET**….**2ND RESPONDENT** **THE ATTORNEY GENERAL** …………………………...**3RD RESPONDENT** **RULING:** 1. This Ruling is with respect to the Notice of Motion application dated 23rd January, 2025 by the Petitioner/Applicant herein, seeking the following orders:- 2. Spent 3. Spent 4. That pending the hearing and determination of the main petition, conservatory orders of injunction do issue against the 1st Respondent whether by herself, her agents, servants and /or employees from continuing with construction, entering into **KIPLOMBE/KIPLOMBE BLOCK 9(MARAKWET DEVELOPMENT)1135** and/or in any other way/manner deal with the land contrary to the registered interest of the Petitioner/Applicant as the lawful and legal owner. 5. That the Honourable Court be pleased to stay the proceedings in **Eldoret CME&L No. 224 of 2025 PERIS JEPKOSGEI KIPTOO VS JOHN YATOR CHEMISTO** pending the hearing and determination of the main petition. 6. Costs of this Application be provided for. 7. The application is supported by the Petitioner’s Supporting Affidavit sworn on the same date. The Petitioner’s case herein is that he married the 1st Respondent under customary law. He avers that the 1st Respondent filed an application in Eldoret CM ELC Case No. E224 of 2025, Peris Jepkosgei Kiptoo vs John Yator Chemisto, dated 24.11.2025. The said application was placed before Hon. P.N. Areri under Certificate of Urgency, and on 25.11.2025 he granted prayer 3 and 4 of the Motion ex parte, and an order was issued the same day. 8. The Petitioner deponed that he became the registered owner of Kiplombe/Kiplombe Block 9(Marakwet Development)/1135, measuring approx. 0.162Ha (the suit property herein), on 17.03.2021. That prior to his registration, the suit property was allotted to Margaret Jepkosgei Toroitich by the Marakwet Development Group on 07.05.2007. The Petitioner avers that he purchased it from her vide an agreement for sale dated 08.08.2015. That she executed all relevant documents to facilitate transfer of the land to him, including an affidavit dated 22.07.2017 confirming the sale. 9. The Petitioner alleges that upon obtaining the orders of 25.11.2025, the 1st Respondent deserted their matrimonial home and went to live with her brother. The Petitioner states that the provisions of Article 159 are echoed at Rule 4 of the Judicial Service (Code of Conduct and Ethics) Regulations, which the 2nd Respondent must adhere to in exercising judicial authority. The Petitioner depones that should the 1st Respondent proceed and occupy the constructed house, he will suffer irreparable harm since he will be forced to incur costs to carry out eviction, which can be avoided by issuance of the orders sought herein. 10. The Petitioner further depones that the 1st Respondent’s occupation will infringe on his proprietary rights as provided under Sections 24(1), 25 and 26 of the Land Registration Act. The Petitioner avers that based on the foregoing, he has established a prima facie case with a high probability of success. Further, that the balance of convenience tilts in favour of granting the orders sought. 11. Upon service, the 1st Respondent opposed the application through a Replying Affidavit dated 27th February, 2026. The 1st respondent deponed that she was the rightful owner of the suit property, despite it having been registered in the Petitioner’s name. She averred that she is the one who purchased the suit land from shares she took from Marakwet Teacher’s Sacco Ltd in 2004. She averred that after purchase, she has been the one utilising the suit property. That the agreement was drafted in the Petitioner’s name and he was registered as the leader of the family. Further, that she was employed as a teacher and had the means to earn a living, and she had explained the source of the funds used to purchase the land. 12. The 1st Respondent deponed that the Petitioner had admitted that she had constructed her home on the land using her own money. She averred that the prayers sought by the Petitioner have been over taken by events since she is already living in the house with their children, and the Petitioner never objected to her constructing on the land as he knew she was the owner. She claimed that the Petitioner had not established a prima facie case, thus the court should exercise its discretion and dismiss the application with costs in the interest of justice and fairness. 13. The Hon. Attorney General entered appearance on behalf of the 2nd and 3rd Respondents vide a Memorandum of Appearance dated 29th January, 2026 but did not file a response to the Application. When the matter was first mentioned on 09.03.2026, the AG sought for more time and was granted 7 days within which to file a response. However, when the matter was again mentioned on 27.04.2026, the AG informed the court that they would not be participating in the application. **Submissions:** 1. On 09.03.2026, this court directed that the present application be canvassed by way of written submissions. The Petitioner complied and filed his submissions dated 24th April, 2026. The 1st Respondent has equally filed submissions dated 27th April, 2026 opposing the motion. **Analysis and Determination:** 1. This court has keenly considered the present application, the Relying Affidavit, the written submissions and the authorities cited therein, and has identified the following three issues for its determination:- 2. *Whether the Petitioner has met all the conditions for grant of a conservatory order;* 3. *Whether the court ought to stay the proceedings in the lower court; and* 4. *Who shall bear the costs of this application?* 5. **Whether the Petitioner has met all the conditions for grant of a conservatory order;** 6. Under this issue, the Petitioner/Applicant herein has sought to be granted a conservatory order to restrain the 1st Respondent from interfering with the suit property and to stop her from continuing with construction on the suit land. Although he framed the order as a conservatory order of injunction, in his submissions, the Petitioner was clear that what he sought was in fact a conservatory order, and not an order of injunction. 7. Under Article 22 of the Constitution, every person has the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been denied, violated or infringed, or is threatened. Article 23(3), provides that in any proceedings brought under Article 22, a court may grant appropriate relief, which may include a conservatory order. 8. The law on the issuance of conservatory orders is well settled. In ***Judicial Service Commission vs Speaker of the National Assembly & Another (2013) eKLR***, conservatory orders were defined as follows:- ***“Conservatory orders, in my view, are not ordinary civil remedies but are remedies provided for under the Constitution, the supreme law of the land. They are not remedies between one individual and another but are meant to keep the subject matter of the dispute in situ. Therefore, such remedies are remedies in rem as opposed to remedies in personam. In other words, they are remedies in respect of a particular state of affairs as opposed to injunctive orders which may only attach to a particular person.”*** 1. Similarly, the Supreme Court in ***Gitirau Peter Munya vs Dickson Mwenda Kithinji & 2 Others (2014) eKLR***, said the following as regards interim conservatory orders:- ***“86. Conservatory orders bear a more decided public law connotation: for these are orders to facilitate ordered functioning within public agencies, as well as to uphold the adjudicatory authority of the court, in the public interest. Conservatory orders, therefore, are not, unlike interlocutory injunctions, linked to such private-party issues as “the prospects of irreparable harm” occurring during the pendency of a case, or “high probability of success” in the applicant’s case for orders of stay. Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes and priority levels attributable to the relevant causes.”*** 1. I am cognizant of the fact that the conservatory order sought herein is directed principally against the 1st Respondent in her personal capacity and not, strictly speaking, against a public body or State organ, as is ordinarily the case in applications for conservatory relief. That notwithstanding, it is evident from the material placed before the Court, that the dispute cannot be viewed as one involving purely private interests. The Petition challenges, inter alia, the legality and constitutionality of orders issued in Eldoret CM ELC Case No. E224 of 2025, which orders are directly challenged in these proceedings. It is equally not in dispute that the 2nd Respondent, who issued the impugned orders, is a judicial officer exercising authority donated by the Constitution and the law, while the 3rd Respondent is likewise a public office established under the Constitution. 2. It follows, therefore, that although the conservatory relief is expressed as being against the 1st Respondent, its effect necessarily extends to the implementation, operation and enforcement of judicial orders issued by a court of law. The dispute thus raises questions touching on the exercise of public power, the administration of justice, and the Court's constitutional mandate to safeguard the integrity of judicial processes. In those circumstances, the matter falls squarely within the realm of public law. 3. In ***Gatirau Peter Munya vs Dickson Mwenda Kithinji & 2 Others (Supra)***, the Supreme Court underscored the distinctive nature of conservatory orders, observing that they are remedies grounded in public law and are intended to facilitate the orderly functioning of public agencies and institutions. When sought at the interlocutory stage, Conservatory orders are meant to uphold constitutional values, and preserve the integrity of judicial proceedings pending the determination of the substantive dispute. 4. The orderly functioning of the courts is undoubtedly a matter of significant public interest and lies at the core of the constitutional administration of justice. The order challenged in the present Petition imposes obligations upon the Petitioner, and failure to comply therewith may expose him to contempt proceedings. In those circumstances, the conservatory relief sought is not confined solely to the personal rights and obligations of the parties but also bears upon the exercise of public judicial authority. The orders sought therefore are both *in personam* and *in rem*. It is in that context that the guidance of the Supreme Court in ***Gatirau Peter Munya vs Dickson Mwenda Kithinji & 2 Others (Supra)*** becomes particularly instructive, as it went on to state as follows:- ***“(89) This third condition is dictated by the expanded scope of the Bill of Rights, and the public-spiritedness that run through the Constitution. This Court has already ruled that election petitions are both disputes in personam and disputes in rem. While an election petition manifestly involves the contestants at the poll, the voters always have a stake in the ultimate determination of the dispute, hence the public interest.”*** 1. That being settled, the principles for granting conservatory orders were summarized in ***Wilson Kaberia Nkunja vs The Magistrates and Judges Vetting Board and Others, Nairobi High Court Constitutional Petition No. 154 of 2016 (20126) eKLR***, where the court held as follows:- ***“ a) An applicant must demonstrate that he has a prima facie case with a likelihood of success;*** 1. ***That unless the court grants the conservatory order, there is a real danger that he will suffer prejudice as a result of the violation or threatened violation of the Constitution.*** 2. ***Whether a conservatory order is not granted, the petition alleging violation of or threat of violation of rights will be rendered nugatory.*** 3. ***The public interest must be considered before the grant of a conservatory order.”*** 4. As to whether the Petitioner has a prima facie case, it is notable that his claim is based on ownership of the land and the fact that he holds title to the land. The Petitioner allegedly purchased the land from one Margaret Jepkosgei Toroitich, the original allottee from Marakwet Development Group on 08.08.2015 and acquired title thereto by virtue of registration. The 1st Respondent herein claims that the land belongs to her as she is the one who sourced funds to purchase it from the Marakwet Teachers Sacco Ltd. 5. The 1st Respondent obtained orders from the subordinate court in Eldoret CM ELC Case No. E224 of 2025. The order allowed the 1st Respondent to continue constructing on the suit property pending hearing and determination of an application filed therein dated 24.11.2025. In addition, the lower court issued an order of temporary injunction against the Petitioner restraining him from dealing with the suit property pending hearing and determination of the main suit. 6. The said orders were indeed issued ex-parte on 24.11.2025 and an order extracted on 25.11.2025. Indeed, the Petitioner was not heard on the application before the lower court, presided over by Hon. P.N. Areri (SPM), issued orders that affected his ownership rights over the suit property, which he is registered as the proprietor thereof. On that note the Petitioner has indeed established a prima facie case. 7. On whether the Petitioner has established that there is a real danger that he will suffer prejudice if the orders are not granted, the Petitioner has indicated what prejudice he will suffer if the conservatory orders are not granted. It is trite that a party claiming prejudice and/or harm must demonstrate the sort of harm they are likely to suffer if the orders are not granted. It is this prejudice/harm that has to be prevented by issuance of the conservatory orders because the alternative is that the suit would be rendered nugatory. In ***Martin Nyaga Wambora vs Speaker of The County Of Assembly of Embu & 3 Others (2014) eKLR***, Mwongo J had this to say about real danger in applications for conservatory orders:- **“60. To those erudite words I would only highlight the importance of demonstration of “real danger”. The danger must be imminent and evident, true and actual and not fictitious; so much so that it deserves immediate remedial attention or redress by the court. Thus, an allegedly threatened violation that is remote and unlikely will not attract the court’s attention.”** 1. The Petitioner annexed a title demonstrating that he is the registered owner of the suit property. He submits that despite being the owner of the suit land, the court gave the 1st Respondent the authority to continue her construction, without giving him an opportunity to explain his position as concerns the allegations made by the 1st Respondent. The Petitioner cites Article 40 of the Constitution and Section 24 of the Land Registration Act on his right to acquire and own property, and that he will suffer prejudice if the orders sought are not granted. 2. The Petitioner has confirmed that the 1st Respondent has constructed her house on the suit property. The Petitioner’s fear is that if the 1st Respondent proceeds and occupies the house constructed, he will suffer irreparable harm since he will be forced to incur expenses in evicting her. He thus seeks the conservatory orders to avoid these costs. 3. The 1st Respondent has however informed this court that the house sought to be stopped is now complete and that she is currently residing in it with the children of the union. I have seen the photos annexed to the 1st Respondent’s Supporting Affidavit demonstrating that construction of the house is now complete. It would seem that the Petitioner’s fears have materialised. 4. The essence of a conservatory order sought herein is to stop the construction and prevent the 1st Respondent from moving into the land. All these things have already happened. It follows that this court cannot pause construction of a house that is already completed and the 1st respondent has moved into it. In essence, the Application herein has in that regard, been overtaken by events. 5. Moreover, if this court were to grant conservatory order as framed herein, it would in the circumstances of this dispute, mean that the 1st Respondent would essentially be evicted from the suit land prior to hearing and determination of the main Petition. The order cannot therefore issue because no basis has been laid for granting such a final relief at the interlocutory stage. 6. Secondly, parties are bound by their pleadings, and an eviction order is not one of the reliefs that were sought in the present application. It is also not in the public interest that a party be evicted from her premises before both parties are heard on the case and a decision made on merit. Doing so would in fact be contrary to the very right to fair trial that the Petitioner is pursuing in the present Petition. For these reasons, the conservatory order cannot issue. 7. **Whether the court ought to stay the proceedings in the lower court;** 8. The second prayer sought by the Petitioner is for a stay of the proceedings in the lower court in Eldoret CM ELC Case No. E224 of 2025 pending the hearing and determination of this suit. Stay of proceeding should not be confused with stay of execution pending appeal. The difference is that on the one hand, an order of stay of execution pauses the enforcement of an order or decree. On the other hand, an order of stay of proceedings is essentially one that stops an entire case or specific proceedings within a case. 9. The grant of an order of stay of proceedings is a discretionary power which, as courts have repeatedly emphasized, ought to be exercised sparingly, and only in exceptional cases. This is because an order of stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall, right to fair trial. 10. Due to its interference with a party’s right to fair trial and to conduct their litigation towards the trial on merit, courts do not generally stay proceedings unless the proceedings, beyond all reasonable doubt, ought not to be allowed to continue. The party seeking an order of stay of proceedings must lay a basis by tendering evidence of the need of the said order. Therefore, the test for stay of proceedings is high and stringent. See Ringera J (as he then was) in the case of **Global Tours &Travels Limited; Nairobi HC Winding Up Cause No. 43 of 2000** persuasively stated thus:- **“As I understand the law, whether or not to grant a stay of proceedings or further proceedings on a decree or order appealed from is a matter of judicial discretion to be exercised in the interest of Justice .... the sole question is whether it is in the interest of justice to order a stay of proceedings and if it is, on what terms it should be granted. In deciding whether to order a stay, the court should essentially weigh the pros and cons of granting or not granting the order. And in considering those matters, it should bear in mind such factors as the need for expeditious disposal of cases, the prima facie merits of the intended appeal, in the sense of not whether it will probably succeed or not but whether it is an arguable one, the scarcity and optimum utilization of judicial time and whether the application has been brought expeditiously”** 1. Recently, in ***Amario vs Amario & 2 others (Civil Appeal (Application) E214 of 2025) (2026) KECA 1211 (KLR)***, the Court of Appeal had this to say on the matter of stay of proceedings:- ***“13. Our understanding of the applicant’s argument is that if the stay sought is not granted, partial distribution of the estate will proceed and in the event of his appeal succeeding, it will be rendered nugatory. In our view, this line of reasoning falls short of the required threshold for several reasons. First, an application for stay of proceedings, particularly one based solely on the applicants’ apprehension or fear, is generally not considered sufficient grounds for granting a stay of proceedings. Courts require more concrete evidence of potential harm or prejudice that would arise if the proceedings were to continue. A party seeking a stay of proceedings must demonstrate more than just a subjective feeling of apprehension or fear about the potential outcome of the case. The applicant typically needs to show that proceeding with the case would cause them substantial loss or irreparable harm, which could render their appeal, if successful, nugatory. (See James Mugo Muraya & 2 Others vs Margaret Wairimu Muraya & Ano. (2025) KECA 1222 (KLR)).*** ***14. Second, the threshold for obtaining a stay of proceedings is high because it can significantly impact on the progress and outcome of a case. A stay of proceedings halts a continuing legal action before a court. Unlike a stay of execution (which stops the enforcement of an existing judgment), courts are highly reluctant to pause an active trial or hearing. As authorities suggest, stay of proceedings is only granted in exceptional cases. (See Meta Platforms, Inc & Ano. vs Samasource Kenya EPZ Limited t/a Sama & Ano.; Kenya National Humans Rights Equality Commission & 9 Others (Interested Parties) (2023) KECA 996 (KLR)). The proceedings will only be stayed if continuing the main trial would make the outcome of that appeal entirely useless. The applicant must prove that the trial will create an irreversible state of affairs or cause substantial loss that cannot be cured by monetary damages later on. A stay will be ordered if the continuing prosecution of the case is demonstrably vexatious, oppressive, or acting in bad faith.*** ***15. Third, the Court needs to balance the applicant’s right to exercise its right of appeal and the potential for irreparable harm against the respondents’ right to have their case heard, determined and potentially benefit from a favourable judgment. (See Meta Platforms, Inc & Ano. vs Samasource Kenya EPZ Limited (supra)).”*** 1. This court has already found that the Petitioner herein has established a prima facie case. In addition, as correctly argued by the Petitioner, if the proceedings in the magistrate’s court continue, then he will suffer prejudice as regards his constitutional rights. The Petitioner further submits that he stands to suffer substantial loss through losing his land. 2. A copy of the Plaint filed in the suit before the lower court was annexed to this application. A look at the said Plaint reveals that in Eldoret CM ELC Case No. E224 of 2025, the 1st Respondent seeks to be declared owner of the land and for a temporary injunction against the Petitioner herein, stopping him from dealing with the land. The 1st Respondent also seeks an order cancelling the Petitioner’s title over the suit property and an eviction order against him. 3. Indeed, his very ownership and registration as proprietor of the land is on the line. There can be no doubt that if Eldoret CM ELC Case No. E224 of 2025 is determined in the 1st Respondent’s favour, the Petitioner shall lose his right to own the property that is currently registered in his name. Such a loss is sufficient to be described as substantial loss that cannot be cured by monetary damages. 4. As held by the Court of Appeal in ***Amario vs Amario & 2 Others (Supra)***, proceedings will only be stayed if continuing the main trial would make the outcome of that appeal, in this instance the Petition herein, entirely useless. Although this is not an Appeal but a separate Petition altogether, this suit directly challenges the very proceedings that seek to challenge the legitimacy of his title. The order already issued by the Hon. P.N. Areri has already affected the Petitioner’s right to occupy the land as envisioned under Section 24 of the Land Registration Act. 5. This court is convinced that if the proceedings are allowed to continue in the lower court and the suit therein is determined against the Petitioner, the present Petition will be rendered useless. For the said reasons, I am convinced that the Petitioner is entitled to the order of stay of the proceedings known as Eldoret CM ELC Case No. E224 of 2025, pending determination of this present Petition. 6. **Who will bear the costs of the application?** 7. Costs are awarded at the conclusion of any legal action or proceedings in any litigation. Section 27(1) of the Civil Procedure Act Cap 21 holds that costs are awarded at the discretion of the court to the successful party. 8. In the instant case, the Plaintiff/Applicant has partially succeeded in prosecuting his application. This means that the 1st Respondent has succeeded in partially defending it. That being the case, and owing to the fact that the matter is yet to be heard and determined, I hereby direct that the costs herein shall abide the outcome of the Petition. **Orders:-** 1. Arising from the foregoing analysis, this court makes the following orders in determination of the Notice of Motion Application dated 23rd January, 2025:- 2. An order be and is hereby issued staying the proceedings in **Eldoret CME&L No. 224 of 2025 PERIS JEPKOSGEI KIPTOO VS JOHN YATOR CHEMISTO** pending the hearing and determination of the main petition. 3. The costs of this Application shall abide the outcome of the Petition. 4. Orders accordingly. **DATED**, **SIGNED** and **DELIVERED** virtually at **ELDORET** on this **16TH** day of **JULY**, **2026** vide Microsoft Teams. **HON. C. K. YANO** **ELC, JUDGE** In the presence of:- Mr. Rotich holding brief for Mr. Mathai for Petitioner. Mr. Kapere holding brief for Mr. Warigi for the 1st Respondent. Mr. Kwame for the 2nd & 3rd Respondents. Court Assistant - Laban.