https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3105

Biwott v Biwott (Environment and Land Case E007 of 2026) [2026] KEELC 3105 (KLR) (21 May 2026) (Ruling) Neutral citation: [2026] KEELC 3105 (KLR) Republic of Kenya In the Environment and Land Court at Eldoret Environment and Land Case E007 of 2026 CK Yano, J May 21, 2026 Between Emily Jepkoros Biwott Applicant and Stephen Aldai Biwott Respondent Ruling 1.The Plaintiff/ Applicant herein filed a Notice of Motion Application dated 29th January, 2026, against the defendant/respondent seeking the following orders: -i.Spent.ii.Spent.iii.That pending the hearing and determination of the Originating Summons herein, the Honourable Court be pleased to issue temporary order of injunction restraining the respondent whether by himself, his agents, servants and/or any other person acting on his own behalf from selling, subdividing, transferring, alienating, leasing or interfering in any manner with the plaintiff’s peaceful possession and use of any part or the whole of land reference number Kapsaret/Kapsaret Block 11(Teldet)/75 pending the hearing and determination of the suit.iv.That costs of this application be in the cause. 2.The application is premised on the 4 grounds on the face thereof and supported by the applicant’s Affidavit sworn on even date and a Further Affidavit sworn and dated 22.04.2026. 3.The applicant deponed that she is the wife of the respondent herein, having been married on 30.04.1985. It is her claim that after the celebration of their marriage, they established their matrimonial home at Kisor Village, Simat Location within Uasin Gishu County and have since then acquired several other properties including land parcel No. Kapsaret/Kapsaret Block 11 (Teldet)/75 (hereinafter referred to as the suit land). 4.It is the applicant’s claim that on or around 08.01.2026, the respondent secretly and clandestinely sold the suit land to a third-party unknown to her. That the said third party continues to erect fences around the perimeter of the farm among other developments. She annexed bundle of photographs to show the said developments. 5.It is further her claim that she did not consent to the sale of the suit land to any one hence the orders sought herein seeking restraining orders against the respondent herein. She therefore urged the court to allow the applicant and grant the order of temporary injunction as sought. 6.The application was opposed. The Defendant/Respondent filed both a Grounds of Opposition dated 23.02.2025 and a Replying Affidavit sword and dated 24.02.2026 in response to the present application. 7.In the Grounds of Opposition, he dismissed the present application as being fatally defective, an abuse of the court process, incompetent for material non-disclosure, brought in bad faith and the same thus ought to be dismissed with costs. 8.It was pleaded that he suit land is not a matrimonial property within the meaning of section 6 of the Matrimonial Property Act. 9.It was his claim that the plaintiff/applicant has failed to establish a prima facie case with a probability of success as she neither has any legal or equitable interest in the suit property nor has she ever been in occupation or possession thereof. 10.In conclusion, it was further averred that the applicant’s claim of irreparable harm is unsubstantiated as the property is not her residence and any alleged loss can be adequately compensated by way of damages. He urged the court to find that the application lacks merit in law and dismiss the same. 11.In his Replying Affidavit, the respondent dismissed the application as being fatally and incurably defective, bad in law, an abuse of the court process aimed at circumventing the process of law, misconceived and thus ought to be dismissed with costs. 12.In response to paragraph 7 of the applicant’s Supporting Affidavit, the respondent denied the averments therein and stated that the suit land is neither a matrimonial property nor did the applicant make any contribution to the acquisition, sustenance or improvement of the same. 13.The respondent maintained that he acquired the suit land in the year 2024 using his resources after they had already separated with the applicant. 14.In response to paragraph 9 of the supporting affidavit, he deponed that the applicant voluntarily moved out upon their separation years ago. 15.It is the respondent’s claim that the present application does not meet the threshold for an injunction as the plaintiff has no prima facie case with probability of success nor will she suffer any irreparable harm that cannot be compensated by damages. 16.It was further deponed that he is the sole and registered owner of the suit land having obtained ownership thereof after separation with the plaintiff. He maintained that the applicant has failed to demonstrate a prima facie case with high chances of success against him. 17.It is also his claim that the applicant has not demonstrated any irreparable loss that she is likely to suffer that cannot be compensated by damages as she has never been in possession and use of the suit land. To the contrary, he contends that any alleged injury thereof arising from his action can be quantified and addressed through monetary compensation. 18.The respondent maintained that the applicant has no legal and/or equitable rights over the suit land which are likely to be violated. 19.It is the respondent’s contention that the applicant will not be prejudiced in any way if the orders sought in the present application are not granted since the applicant has neither been in actual possession, occupation or use of the suit land nor does she have any beneficial interest thereon. 20.In conclusion, he maintained that the present application lacks merit and urged the court to dismiss the same with costs in the interest of justice. 21.The Grounds of Opposition and the Replying Affidavit were duly served upon the applicant, who filed a Further Affidavit dated 22.04.2026 in response thereto. 22.In her Further Affidavit, the applicant reiterated that the suit land is a matrimonial property, the same having been acquired during the subsistence of the marriage since they have never divorced. 23.She maintained that she will be greatly prejudiced together with her children since the respondent is selling family property. She thus urged the court to allow the application as sought. 24.This court issued directions on the disposal of the application by way of written submissions. The applicant filed her submissions dated 14.04.2026 while the respondent filed his submissions dated 14.04.2026 together with authorities which I have read and considered. Analysis and Determination: 25.I have carefully considered the grounds in the application, the affidavits in support of the application and the annexures therein, the various responses by the respondent as well as the rival submissions in totality. 26.It is therefore my considered view that the issues arising for determination are as follows: -i.Whether the applicant has met the requirements for the grant of an order of temporary injunction.ii.Who shall bear the costs of the application Whether the applicant has met the requirements for the grant of an order of temporary injunction 27.The applicant in prayer no. (iii) has sought the grant of an order of temporary injunction against the defendant, restraining him, his agents, servants and/or any other person acting on his own behalf from selling, subdividing, transferring, alienating, leasing or interfering in any manner with the plaintiff’s peaceful possession and use of any part or the whole of land reference number Kapsaret/Kapsaret Block 11(Teldet)/75 (suit land herein). 28.Order 40 (1) (2) of the Civil Procedure Rules governs the grant of temporary injunction. Further, section 13 (7) (a) of the Environment and Land Court Act, 2015 also empowers this court to grant interim preservation orders, including an interim order of injunction in the nature sought herein. 29.The principles governing the grant of temporary injunctions are now well settled, the same was set out in the case of Giella vs Cassman Brown and Co. Ltd [1973] EA. 358 at 360 and reiterated in several cases over the years. 30.The Court of Appeal in the case of Nguruman Limited vs. Jan Bonde Nielsen & 2 others [2014] eKLR restated this position and held as follows:“…these are the three pillars on which rest the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially… if the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted will be irreparable. In other words, if damages recoverable in law are an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration.” 31.These 3 necessary principles to be established in a claim of injunction are to be applied as separate, distinct and logical hurdles which an applicant is expected to prove sequentially. The existence of one element alone does not automatically entitle an applicant to an order of injunction without considering the other elements. See Kenya Commercial Finance Co. Ltd V. Afraha Education Society [2001] Vol. 1 EA 86. Prima Facie Case; 32.The applicant is under a duty to demonstrate the existence of a prima facie case which raises arguable and triable issues with a probability of success. The Court of Appeal in Mrao Ltd vs. First American Bank of Kenya and 2 Others (2003) KLR 125 explained what amounts to a prima facie case and stated as follows: -“a prima facie case in a civil application includes but is not confined to a “genuine and arguable case.” It is a case which, on the material presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.” 33.The question that therefore follows is whether the applicant has established a prima case and demonstrated that there exists a right which has been infringed by the defendant/respondent to warrant the grant of the injunctive orders. 34.From a look at the grounds in the application and the facts contained in the supporting affidavit and further affidavit, it is clear that the applicant’s cause of action and rights over the suit land is mainly premised on the basis that the suit land is a matrimonial property, the same having been acquired during the subsistence of their marriage with the respondent. 35.It is on that account that she claims that the respondent did proceed to sell the suit land to a third person who is unknown to her, without her consent. She maintained that the Act makes it necessary for Spousal Consent to be obtained before any transaction relating to a matrimonial property can be done. 36.Her basis therefore for seeking the temporary injunctive orders is for the protection of the properties acquired during the subsistence of the marriage between respondent and herself and which form part of the matrimonial property from sale and/or alienation without her consent. 37.The respondent on the other hand has maintained that he is the sole registered and beneficial owner of the suit land, the same having been acquired in the year 2024 after his separation with the plaintiff. It is therefore his claim that the suit land is not matrimonial property. That the applicant has never been in possession nor did she contribute towards its acquisition. 38.Thus, in view of the above, it is my considered opinion that in determining whether the applicant has demonstrated a prima facie case, it is important for the court to first ascertain and establish whether the suit land herein is indeed a matrimonial property or not. 39.Unfortunately, matters touching on whether a property is matrimonial property or not are not matters within the scope of the jurisdiction exercised by this court. Article 162 (2) (b) of the Constitution as read with the Environment and Land Court Act specifically outlines the limits of the jurisdiction to be exercised by this court and the same certainly does not include issues of matrimonial property. The importance of jurisdiction cannot be overemphasized. 40.Consequently, without being clothed with the requisite jurisdiction on matters touching on matrimonial property, this court is unable to make any finding on the same and substantively consider whether the applicant has established the existence of a prima facie case. 41.Be that as it may, and without prejudice to the foregoing, this court has also noted from the supporting affidavit that it is the applicant’s claim that the suit land has already been sold to a third party unknown to her, and the said third party/unknown persons have already started putting up developments on the suit land. 42.The effect of the orders sought herein, are to restrain the use of the suit land by any other person, including the party that has allegedly since purchased the suit land. Allowing the same would in essence amount to condemning the said party unheard, without giving them an opportunity to ventilate their case before the substantive orders are made against them. The right to be heard as enshrined in the Constitution is the cornerstone of the rule of law and this court is under a duty to ensure that no adverse orders are issued against a person who is not a party to the dispute before it. To this end therefore, this court cannot grant the said orders as sought. Irreparable Loss and Injury; 43.The second element is that an applicant must demonstrate the irreparable loss and injury that she is likely to suffer that cannot be adequately compensated by an award of damages unless an order of injunction is granted. 44.The onus is on the applicant to demonstrate the nature and extent of the irreparable loss and harm that she is likely to suffer if the order of injunction sought is not granted. This injury must be actual, substantial and demonstrable and not mere unfounded fears or apprehension. 45.In the Court of Appeal case of Nguruman Limited v Jan Bonde Nielsen & 2 Others (supra), while defining what amounts to an irreparable injury, the court held as follows:-“On the second factor, that the applicant must establish that he “might otherwise” suffer irreparable injury which cannot be adequately remedied by damages in the absence of an injunction, is a threshold requirement and the burden is on the applicant to demonstrate, prima facie, the nature and extent of the injury. Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the applicant. The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstrable; injury that cannot “adequately” be compensated by an award of damages. An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy.” 46.From a look at the applicant’s claim as contained in the body of the application as well as in the affidavits in support of her application, there is no demonstration of the actual, substantial and demonstrable harm and injury that she is likely to suffer unless the orders of injunction sought are granted. She has not demonstrated that she is in possession of the suit land or use as alleged. 47.In the absence of proof, this court is unable to find that the applicant will suffer any irreparable harm and injury that cannot be compensated by an award of damages. Balance of Convenience; 48.The final element is on the balance of convenience. On this element, the court is called upon to balance the hardship or inconvenience likely to be caused to the applicant by declining the injunction against the hardship or inconvenience likely to be caused to the respondents by granting the injunction. 49.In totality of the foregoing, it is my finding that the balance of convenience lies in favor of the respondent in not granting the orders of temporary injunction as sought. 50.The upshot of the above is that the plaintiff/applicant has failed to sufficiently prove all the three elements required for the grant of an order of temporary injunction to the required standard. Who shall bear the costs of the application; 51.It is well settled that costs follow the event unless the court directs otherwise. 52.In this case, having held that the applicant has failed to sufficiently prove her claim, it is my finding that the respondent is entitled to costs of the application. Conclusion 53.In view of the foregoing, it is the finding of this court that the Notice of Motion Application dated 29th January, 2026 is not merited and is hereby dismissed with costs to the defendant/respondent. 54.It is so ordered. DATED, SIGNED AND DELIVERED IN ELDORET THIS 21ST DAY OF MAY, 2026.HON. C. K. YANOJUDGERuling delivered in the presence of: -Ms. Chirchir holding brief for Ms. Kesei for the Defendant/ Respondent.No appearance for the Plaintiff/Applicant.Court Assistant – Laban