https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4631

Jepkemei v Arap Sitienei (Land Case (Originating Summons) E001 of 2025) [2026] KEELC 4631 (KLR) (15 July 2026) (Ruling) Neutral citation: [2026] KEELC 4631 (KLR) Republic of Kenya In the Environment and Land Court at Kapsabet Land Case (Originating Summons) E001 of 2025 GMA Ongondo, J July 15, 2026 Between Dorcas Jepkemei Plaintiff and Kipsaina Arap Sitienei Defendant Ruling 1.This ruling is in respect of the Notice of Preliminary Objection dated 25th February 2025 (The preliminary objection herein) and the Notice of Motion Application dated 13th February 2025 (The application herein) only. 2.Notably, the other two other applications namely the Notice of Motion dated 18th March 2025 and the Notice of Motion dated 5th May 2025 for contempt of court were abandoned by the parties immediately before the delivery of the ruling. 3.The Preliminary Objection initiated by the Defendant/Respondent through Cheruiyot Melly and Associates Advocates before Keverenge A. A. Advocates filed the notice of change of Advocates dated 24th April 2025, is founded upon the grounds infra:a.The Honorable Court is devoid of Jurisdiction to grant the prayers sought by the Applicant.b.​That, the Applicant has no locus standi to file suit.c.​That, the suit herein has been brought in contravention of Section 82(a) of the Law of Succession Act Cap 160 Laws of Kenya.d.​That, the suit herein, is fatally defective, incompetent and bad in law and the same ought to be struck out Ex-Debito Justitiae.e.​That, the suit herein is otherwise non-starter.f.​ That, the entire suit is otherwise an abuse of the due process of Court. 4.The plaintiff/applicant generated this suit by the originating summons dated 11th February 2025 claiming to have acquired the interest in the suit land reference number Nandi/Surungai/219 by adverse possession. The claim provoked the preliminary objection. Hearing of both the preliminary objection and the application was by written submissions further to the court’s directions herein. 5.So, the Respondent premised his submissions dated 28th July 2025 on the issue of jurisdiction of the court to handle the Application and the locus standi of the Applicant to institute the suit. It was submitted that the preliminary objection raised pure points of law. That the applicant deserved not to file this suit by virtue of her marriage to her deceased husband. Reliance was made on case law including Trouistik Union International & Another –vs- Jane Mbeyu & Another (1993) eKLR that the estate of a deceased person can only be represented in legal proceedings by a person who has obtained a grant of letters of administration in respect of the estate of the deceased. 6.Also, the Respondent submitted on the issue of adverse possession and cited the case of Mtana Lewa –vs- Kahindi Ngala Mwagandi (2015) eKLR as regards requirements of adverse possession. He argued that the Applicant had not met all the requisite requirements because she occupied the suit land through marriage and therefore, her possession of it was not peaceful as he constantly tried to evict her therefrom. 7.In the submissions dated 19th May 2025, the Plaintiff/Applicant through her counsel Rotich, Langat & Partners Advocates opposed the preliminary objection and stated that the same is misconceived and does not stem from the pleadings of the Respondent. She submitted that the issues raised in the preliminary objection were debatable thus, invited the court to examine facts and evidence so as to reach a determination. That the preliminary objection does not raise pure points of law and cited the case of Oraro –vs- Mbaja (2005) 1 KLR to buttress the submissions. 8.I have taken into account all the grounds on the face of the preliminary objection, the entire suit including the application and the submissions by counsel for the respective parties. The duty of this court is therefore, to determine whether the preliminary objection is legally sustainable. 9.The Respondent has raised the issue of jurisdiction to the effect that the Applicant ought to have filed the suit before a different Court which handles succession matters given that the suit land belonged to her deceased husband. That the applicant lacks the locus standi to represent the estate of her late husband without first obtaining a grant of letters of administration. 10.The applicant has asserted that the suit land belonged to her late husband and that she got in possession of it by virtue of her marriage to the deceased. On the other hand, the Respondent stated that the Applicant is a total stranger to him and in fact an intruder to the land. He also stated that the Applicant was never married to the deceased who was his brother. 11.It is apparent that the applicant’s ownership claim over the suit land is tied to alleged marriage to the deceased, a debatable issue which requires evidence for determination. The Respondent’s contention is that the Applicant has pleaded marriage which falls under the realm of succession law hence, ousts the jurisdiction of this court over the present matter. 12.It is trite law that a preliminary objection must not involve contested facts or require the court to ascertain evidence; see Mukisa Biscuit Manufacturing Co. Ltd vs West End Distribution Ltd (1969) EA 696. 13.The other grounds that are on the face of the preliminary objection including that the Applicant lacks the locus standi to file this suit, are issues that can be dealt with on merit hearing of the suit. The point of law namely locus standi stems from the alleged marriage, which, if proven or not, can then aid the court to determine this dispute. 14.In the premises, I approve the Applicant’s assertion that the preliminary objection raises several issues which are not pure points of law. That the require interrogation of evidence and facts as noted in, inter alia, Mukisa Biscuits and Oraro cases (supra). 15.As regards the application, the orders sought therein are infra;a.That, in the alternative this Honourable Court be pleased to issue temporary orders of injunction and or Maintenance of the status quo prevailing at the moment on the suit land meaning the Applicant is in gainful possession and occupation a portion of the subject matter measuring 2.0 acres pending hearing and determination of this suit.b.That, the OCS Surungai Police Station to provide security during the implementation of the orders of this Honourable Court to prevent miscarriage of justice law and order.c.That costs be provided for in favour of the Applicant. 16.The application is anchored upon the grounds, inter alia;a.That, the Applicant continued actual and physical possession and use of the portion measuring 2.0 acres out of the suit land continuously and without interruption since 1998 until recently when the Respondent threatened to evict her.b.That, the Respondent has threatened to evict and chase the Applicant away from the suit land in order to cultivate on the Applicant’s portion of land.c.That the Applicant herein is an intruder on the said land parcel and further that her occupation and possession has not been peaceful and uninterrupted since they (Respondent) tried evicting her and the late Kinyory Arap Tuwei with the help of the then area chief and District Officer but the late Kinyoru Arap Tuwei became evasive and at times violent. 17.In the Plaintiff/Applicant’s submissions, reliance was made on the case of Giella –vs- Cassman Brown Company Ltd (1973) EA 358 which outlines the requirements for the grant of the orders sought by the Applicant. The applicant submitted that the application had met all the requirements for grant of the injunction and that she has demonstrated the harm that would occasion on her if the orders sought are not granted. That both parties have admitted the occupation and possession of the section of suit land and only disagreed on its size. That the balance of convenience tilts in her favour. 18.On the other hand, the Respondent submitted in opposition to the application and relied on the case of Giella (supra) on requirements for injunction. He submitted that the Application does not establish a prima facie case because the Applicant lacks the locus standi to sue on the estate of her late husband without obtaining grant of letters of administration. 19.Further, the respondent urged that the Applicant cannot claim irreparable harm when the property she occupies has been subject of several attempts of eviction by the Respondent. That should there be any harm, then the same can be compensated by way of damages given that the Application is in use of only one acre of the suit land. On the issue of balance of convenience, the Respondent submitted that it tilts in his favour because he is the registered proprietor of the suit land. 20.In that regard, has the Applicant established the threshold to entitle her to the orders sought in the application? 21.To obtain the relief sought in the application, the locus classicus case of Giella (supra) requires the applicant to meet the following requirements:a.That she has a prima facie case with a probability of success;b.That she stands to suffer irreparable harm that cannot be compensated by damages; andc.Where there is doubt, that the balance of convenience tilts in their favour. 22.The Applicant contended in part, that she has been in occupation of land parcel number NANDI/SURUNGAI/219 since the year 1988. That she took possession of the said land when she got married to her late husband, who died in the year 2023. That she has constructed a dwelling house, a kitchen and a small house for her sons thereon. 23.The Respondent acknowledged that the late Kinyoru Arap Tuwei was his brother and lived on the suit land together with the Plaintiff/applicant. However, he denied that the Plaintiff/applicant was married to his late brother who did not own the suit land. 24.In the foregone, it is the considered view of this court that the Plaintiff/applicant claims ownership of the suit land by adverse possession which must be determined on merit. I am guided by Giella (supra) and Nguruman Limited –vs- Jan Bonde Nielsen & 2 others (2014) eKLR in which the court stated that a prima facie case in civil proceedings includes but is not confined to a genuine and arguable case. That on the face of it, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the other party as to call for an explanation or rebuttal. 25.As regards irreparable harm, the court considers the duration of time that the Applicant has occupied the suit land, It was not disputed by the Respondent that the applicant has built a home on the land and generally known the place as her home. The court must be keen to protect her interests because losing the home may not, reasonably, be compensated by damages. In the Nguruman case (supra) the court explained irreparable harm as follows:”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” 26.On the limb of balance of convenience, this court considers that both parties have acknowledged that the Applicant has been in actual possession of the portion of the suit land since the year 1988. It is only fair to tilt the balance of convenience towards the Applicant because in the event that the case goes against her on trial, then the Respondent will not have lost anything as he continues to live his life as he has lived since 1988. On the contrary, if the balance tilts towards the Respondent and deny the orders, the Applicant will have been greatly inconvenienced should she succeed in the main suit. 27.In the final analysis, I find that the preliminary objection is not sustainable. Further, the Applicant deserves interim preservation orders in respect of the suit land to allow the suit to be heard and determined on merit. The Court has considered the character of orders sought in the Application and that the interim preservation orders that have been in place since 14th February 2025. So, the Court is not included to give any other orders which would serve the same purpose as the existing orders. 28.For the foregone reasons, the court gives the following orders:i.That the Notice of Preliminary Objection dated 25th February 2025 is dismissed.ii.That the application dated 13th February 2025, is merited and partially allowed in terms of an interim preservation order hence, an order of maintenance of status quo be and is hereby issued that the Applicant is in gainful possession and use of the 2.0 acres of LR. NO. NANDI/SURUNGAI/219 pending the hearing and final determination of the suit herein.iii.That the suit be set down for pre-trial conference.iv.That each party to bear their own costs. 29.It is so ordered. DATED AND DELIVERED AT KAPSABET THIS 15TH DAY OF JULY, 2026.HON. G M A ONGONDOJUDGEIn the presence of;Mr. Moses Rotich learned counsel for the applicant/plaintiffMr. Mark Akama learned counsel for the respondent/defendantMr. Walter Kipkorir, Court Assistant