https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4244

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KISUMU** **ELCLOS/E025/2026** JULIUS KIPKOROS ROP (Suing as a beneficiary of the Estate of Babonya Koskey)......................................................................................APPLICANT **VERSUS** ###### DANIEL KIPROP BIRGEN.....................................1ST RESPONDENT **ESTHER C. KIPRUTO...........................................2ND RESPONDENT** # RULING **Introduction** 1. Before this Court is a Notice of Motion dated 16 April 2026, brought under a Certificate of Urgency of the same date. The application is grounded in Sections 17, 18, 37, and 38 of the Limitation of Actions Act (Cap 22 of the Laws of Kenya), Order 37 Rule 7 and Order 51 Rule 1 of the Civil Procedure Rules, 2010. The Applicant seeks the following prayers from the Court: 2. A temporary order of injunction restraining the Respondents whether by themselves, his servants, agents, or any person whomsoever from doing any of the following acts that is to say evicting, selling, leasing, charging or otherwise howsoever interfering with the Applicant’s quiet, peaceful, actual and exclusive possession, user, development and enjoyment of the half portion of the parcel of land known Kisumu/Fort-Tenan/289 pending the hearing and determination of this application and suit. 3. The preservation of the status quo prevailing as regards possession, user, occupation and registration of the parcel of land known as Kisumu/Fort-Tenan/289 by the Applicant pending the hearing and determination of this application and suit. 4. The costs of this Application be borne by the Respondents. **The Application** 1. The grounds in support of the application are that the Applicant, along with his extended family, has occupied a designated half of the suit property since 1968, rooted in a joint purchase by Richard Kipruto Sigilai and Babonya Koskey, the Applicant’s grandfather. A policy supposedly designated Richard as the trustee for both families, with the land divided by a live sisal fence that has acted as a boundary to date. The Applicant averred that his grandfather’s remains are on this land. 2. The application concerns the Respondents’ plan to partition the property, with a survey scheduled for April 27, 2026. The Applicant claims the partition is based on a Consent Order of the Court of Appeal at Kisumu in Civil Appeal No. 128 of 2018, which awarded only 10 acres to the Applicant's family and left the remainder to the Respondents. The Applicant challenges the order’s validity, alleging it was entered irregularly, unlawfully, and fraudulently by his former advocates. He asserts a prima facie case under adverse possession, having occupied the land for over 12 years. He warns that alienating or partitioning the land would cause irreparable damage, rendering the Originating Summons ineffective. He also argues that the balance of convenience favours maintaining the status quo, as the Respondents do not currently use or reside on the portion he occupies, and an injunction would cause no prejudice to them. 3. The application is buttressed by a Supporting Affidavit sworn by the Applicant, Julius Kipkoros Rop, on the 16th of April 2026. He deposes that over the years, there have been numerous arbitration proceedings and decisions rendered by local elders, all of which purportedly affirmed that each family is entitled to an equal half-share of the suit property. The Applicant deposes that the late Leah Kipruto, the 2nd Respondent, and all other beneficiaries of the estate of Richard Kipruto Sigilai were aware of his family’s open, notorious, and continuous possession of the land. Despite this knowledge, the registered owners never initiated any action to evict them from the year 1968 to the present date, thereby allowing the Applicant’s prescriptive rights under adverse possession to crystallise. 4. Delving into the extent of his possession, the Applicant averred that he has undertaken substantial developments on his portion of the land, including coffee farming, which is the sole livelihood for his family. Furthermore, he avers that he has constructed a coffee factory on the land and leased it to a local church. He argues that the destruction of these investments would cause irreparable loss. 5. With leave of this Court, the Applicant filed a further affidavit on 17th June 2026 to respond to the averments in the Respondents’ replying affidavit. The Applicant challenged the competence of the replying affidavit. He deposed that the 1st Respondent lacks the legal capacity to depose on behalf of the 2nd Respondent in the absence of written authority. The Applicant noted that no such authority was exhibited in the replying affidavit, rendering the averments made on behalf of the 2nd Respondent incompetent, incurably bad, and legally void pursuant to Order 1 Rule 13 of the Civil Procedure Rules, 2010. 6. Substantively, the Applicant attempted to draw a legal distinction between his current claim of adverse possession and the claims advanced in previous litigation. He argued that the earlier Summons for Revocation of Grant filed in the succession court was founded on the equitable doctrine of constructive trust, asserting that the deceased held the property subject to the Applicant’s beneficial interest, which he argues is distinct from and unrelated to a claim founded on adverse possession. 7. On the issue of *locus standi* to sue on behalf of the estate of Babonya Koskey, the Applicant justified the omission by citing the urgency of the matter in view of the impending partition by the government surveyors. He further explained that the original death certificate of the deceased Babonya Koskey could not be traced despite diligent efforts, constraining him to initiate a lengthy administrative process for the late registration of death and the issuance of a replacement. **Summary of the Reply** 1. The application is opposed through a replying affidavit sworn by the 1st Respondent on the 15th of June 2026. He deposed that the suit land, measuring approximately 170 acres, wholly and exclusively belonged to Richard Kipruto Sigilai. Following his death on the 26th of August 1990, his two widows, the 2nd Respondent and the late Leah Taplele Kipruto, petitioned the High Court at Kisumu in Succession Cause No. 296 of 1996 for a Grant of Letters of Administration Intestate. The Court granted the suit land on the 10th of March 1997 and subsequently confirmed it on the 13th of November 1997, vesting the entire title to the suit land in the two widows as proprietors in common in equal shares. The suit land was formally registered and transferred to them on the 11th of October 2006. 2. The 1st Respondents set out a decades-long litigation history between the two families across multiple forums. First, in the Resident Magistrate’s Court at Muhoroni (Civil Suit No. 13 of 2001), the Applicant, Joseph Langat Rop, and Tapsabea Kosgei filed a suit against the 2nd Respondent and Leah Kipruto over the same subject matter. The Applicant and his co-plaintiffs withdrew the suit. 3. Subsequently, in the High Court at Kisumu (Succession Cause No. 296 of 1996), the Applicant and his family filed a Summons for Revocation or Annulment of Grant on the 11th of October 2007. They unsuccessfully sought to revoke the grant issued to the widows, claiming entitlement to a half-share based on constructive trust and historical occupation. 4. Further litigation took place in the Environment and Land Court at Kisumu (Civil Case No. 105 of 2007), in which the Respondents sought the eviction of the Applicant and his family for trespass. The Applicant filed an Amended Joint Statement of Defence and Counterclaim, asserting equitable ownership of half the land and seeking subdivision. By a judgment delivered on the 5th of October 2016 by Hon. Justice S.M. Kibunja, both the Respondents’ suit for eviction and the Applicant’s counterclaim for a half-share were dismissed, as neither party proved their case on a balance of probabilities. 5. The matter then escalated to the Court of Appeal at Kisumu (Civil Appeal No. 128 of 2018), where the Respondents filed an appeal against the ELC judgment and the Applicant filed a Notice of Cross-Appeal. The Court of Appeal heard the matter and advised a negotiated settlement to prevent the Applicant from losing everything. Following negotiations by counsel, a Consent Order was recorded and adopted as an order of the Court on 12 May 2023. The consent bound the Respondents to transfer 10 acres of the land to the Applicant. The Applicant subsequently changed counsel and filed a Notice of Motion dated 25 April 2024, seeking to review and set aside the Consent Order (Court of Appeal, Kisumu - Civil Appeal No. 128 of 2018). The Applicant alleged that his former counsel acted maliciously, fraudulently, and without instructions. In a ruling delivered on 3 October 2025, a three-judge bench dismissed the Applicant’s application for review with costs, finding the allegations of fraud and lack of instructions unsubstantiated. 6. Relying on this history, the 1st Respondent argued that the Applicant’s current suit is nothing more than a collateral attack on the final decree of the Court of Appeal. The 1st Respondent pointed out that the survey process initiated by the Nyando Sub-County Surveyor (which the Applicant seeks to injunct) is the direct, lawful execution of the Court of Appeal’s order directing the subdivision of the 10 acres for the Applicant and the remainder for the Respondents. 7. The Respondents also contested the Applicant’s locus standi to file the suit. The 1st Respondent states that any legitimate claim to the suit land arising from Babonya Koskey’s actions could only be made by the properly appointed estate administrators of his estate. Since the Applicant is not the estate’s administrator and holds no grant of representation, they lack the legal capacity to pursue these proceedings. The Respondents assert that the suit is a clear abuse of court process, entirely false, unsubstantiated, and aimed solely at delaying and obstructing the lawful estate of the deceased they represent. **Parties’ Submissions** 8. The Applicant filed written submissions dated 19 June 2026. The gist of the Applicant’s submissions is that the purpose of the present application is not to finally determine the complex issues of ownership or adverse possession at this interlocutory stage. Rather, the objective is to preserve the subject matter of the suit so that the Court can ultimately adjudicate the adverse possession claim on its merits. The Applicant argues that should he be evicted or his vast agricultural properties be interfered with, the entire Originating Summons will be rendered nugatory and academic. 9. The Applicant relied on the locus classicus case of ***Giella v Cassman Brown & Co. Ltd [1973] EA 358,*** on the sequential conditions for the grant of an interlocutory injunction: a prima facie case with a probability of success, irreparable injury which would not adequately be compensated by an award of damages and the balance of convenience. 10. Addressing the first condition, the establishment of a prima facie case, the Applicant relied on the definition provided by the Court of Appeal in ***Mrao v First American Bank of Kenya and Two Others [2003] KLR 125:*** ***“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.”*** 1. Applying this definition, the Applicant submitted that his open, continuous, and uninterrupted occupation of the suit land for over 50 years, together with the establishment of his family home, the cultivation of large-scale coffee and sugarcane, the construction of a coffee factory, and the leasing of premises to a church, unequivocally establishes a strong prima facie case of adverse possession, with a high probability of ultimate success. 2. Turning to the second condition, irreparable loss, the Applicant submitted that he faces imminent dispossession arising from the scheduled survey and demarcation exercises. He argued that the inconvenience, destruction of generational investments, and loss of livelihood cannot be quantified in monetary damages. To support this, the Applicant relied on the ruling in ***Sewe v Ogutu [2023] KEELC 16809 (KLR),*** which: ***“On the 2nd principle, the plaintiff had to demonstrate he would suffer irreparable harm that could otherwise not be compensated by an award of damages. The plaintiff alleged occupancy of the suit property for over 12 years, peacefully and without interruption. This was not rebutted by the defendant. Taking into consideration the claim is grounded on adverse possession, there is grave danger that the defendant may interfere with the plaintiff's alleged interests over the suit property...”*.** 1. Finally, regarding the balance of convenience, the Applicant argued that the scales favour him because he is already in actual, physical possession of the land. The Respondents are actively seeking to alter that established possession before the substantive case is heard. Denying the injunction would allow the Respondents to partition and alienate the land, thereby rendering the Originating Summons nugatory. The Applicant relied on ***Ainea W. Ndombi v Saimon O. Loukeri [2023] eKLR,*** which states: ***“The court held that where a claimant is already in occupation of land and has filed an originating summons claiming adverse possession, eviction before trial may render the suit nugatory, thus justifying preservation of the status quo through a temporary injunction.”*** 1. The Applicant concluded by urging this Court, as a court of equity, to protect his investments and prevent a grave injustice that would arise from pre-trial eviction. 2. The Respondents’ counsel submitted that no court, properly directing its mind to the facts and the law, could entertain the equitable reliefs sought. While the Respondents agree with the Applicant that the principles governing the grant of an injunction are set out in ***Giella v Cassman Brown & Co. Ltd (supra),*** they argue that the Applicant has failed to surmount even the first hurdle: demonstrating a prima facie case with a probability of success. 3. The Respondents submitted that the Applicant’s claim of adverse possession is untenable, detailing the extensive litigation history, from Muhoroni RMCC No. 13 of 2001, to Succession Cause No. 296 of 1996, to ELC Case No. 105 of 2007, and ultimately to the Court of Appeal. The Respondents submit that the Applicant's possession has been continuously disputed for decades. The filing of successive suits completely breaks the chain of continuous, peaceful possession required to trigger the provisions of the Limitation of Actions Act. 4. The Respondents emphasise the Applicant’s lack of locus standi. They argue that any valid claim arising from the historical settlement of Babonya Kosgey vests solely in the estate of Babonya Kosgey. The Respondents submit that Kenyan law contains no provision permitting a person to unilaterally declare themselves a beneficiary and to institute proceedings to recover property on behalf of an unrepresented estate. Citing this lack of capacity, the Respondents argue that the suit is a nullity and cannot give rise to a prima facie case. 5. Additionally, the Respondents submit that the Environment and Land Court lacks jurisdiction to grant the prayers sought, as doing so would amount to staying or varying a final decree of the Court of Appeal. They highlight that the survey process the Applicant seeks to injunct is the direct implementation of the Consent Order adopted by the Court of Appeal on 12th May 2023 in Civil Appeal No. 128 of 2018. They further point out that the Applicant’s grievances regarding alleged fraud by his advocate were thoroughly canvassed before a three-judge bench of the Court of Appeal, which dismissed his application for review on 3rd October 2025. 6. Concluding their submissions, the Respondents argue that, because the Applicant has failed to establish a prima facie case, the Court need not consider the elements of irreparable injury or the balance of convenience. They prayed for the application to be dismissed with costs. **Analysis and Determination** 1. I have carefully considered the application, the supporting affidavit, the further affidavit, and the replying affidavit. I have also reviewed the written submissions filed by both counsel, alongside the array of judicial authorities cited therein. The issues arising for determination therefrom are: 2. Whether the replying affidavit is competent. 3. Whether the application meets the threshold for granting injunctive relief. **Competence of the Replying Affidavit** 1. The Applicant, in his further affidavit, contended that the 1st Respondent cannot lawfully depose on behalf of the 2nd Respondent without explicit written authority, as required by Order 1 Rule 13 of the Civil Procedure Rules, 2010. Order 1 Rule 13 of the Civil Procedure Rules provides: *“(1) Where there are more plaintiffs than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding; and in like manner, where there are more defendants than one, any one or more of them may be authorized by any other of them to appear, plead or act for such other in any proceeding.* *(2) The authority shall be in writing signed by the party giving it and shall be filed in the case.”* 1. It is not in dispute that the 1st Respondent did not annex a formal written authority, signed by the 2nd Respondent, authorising the 2nd Respondent to swear a replying affidavit on her behalf. The Court’s view is that the 1st and 2nd Respondents are co-administrators of the estate of Richard Kipruto Sigilai and are registered as proprietors in common in equal shares in the suit property. They share a joint, indivisible, and inseparable legal interest in the defence of this suit. The 1st Respondent, as a co-proprietor and co-administrator, is fully competent to swear an affidavit on matters within his personal knowledge that affect the joint defence of the estate. 2. Furthermore, the 1st Respondent deposed in paragraph 1 of the replying affidavit that he had the co-respondent's authority to swear it on her behalf. The Court finds this authority sufficient unless the Applicant has evidence to the contrary showing that the 2nd Respondent did not authorise the swearing of the affidavit on her behalf. Accordingly, the Applicant's objection to the replying affidavit's competence is dismissed. The affidavit and its annexures are properly before the Court. **Threshold for Interlocutory Injunctions** 1. As correctly submitted by both counsel, the principles guiding the grant of temporary injunctions were crystallised in the landmark decision of ***Giella v Cassman Brown & Co. Ltd (supra)*.** The tripartite test requires an applicant to demonstrate: 2. A prima facie case with a probability of success. 3. That the applicant will suffer irreparable injury which would not adequately be compensated by an award of damages. 4. If the Court is in doubt, it will decide the application on the balance of convenience. 5. It is settled law that these three conditions are sequential. As elucidated in the case of ***Kenya Commercial Finance Co. Ltd v Afraha Education Society [2001]1 EA 86,*** an applicant must surmount the first hurdle before the Court can even consider the second. Only when the Court is in doubt after analysing the first two conditions does the third condition, the balance of convenience, come into play. The Court held that: ***“The conditions stated in Giella’s case are sequential so that the second condition can only be addressed if the first one is satisfied, and when the court is in doubt then the third condition can be addressed.”*** **Establishment of a Prima Facie Case** 1. The Applicant bears the heavy burden of establishing a prima facie case with a probability of success. As stated in ***Nguruman Ltd v Jan Bonde Nielsen & 2 others [2014] eKLR***: ***“We reiterate that in considering whether or not a prima facie case has been established, the court does not hold a mini trial and must examine the merits of the case closely. All that the court is to see is that on the face of it the person applying for an injunction has a right, which has been or is threatened with violation. Positions of the parties are not to be proved in such a manner as to give a final decision in discharging a prima facie case. The applicant need not establish title it is enough if he can show that he has a fair and bona fide question to raise as to the existence of the right, which he alleges. The standard of proof of that prima facie case is on a balance or, as otherwise put, on a preponderance of probabilities. This means no more than the court takes the view that on the face of it the applicant’s case is more likely than not to ultimately succeed.”*** This means that while the Court is not required to hold a mini-trial at this interlocutory stage, it is duty-bound to closely examine the merits of the case to determine whether the Applicant's case is more likely than not to succeed at a full trial. 1. First, regarding locus standi, the Applicant expressly states in the title of his pleadings and throughout his affidavits that he is suing as a beneficiary of the estate of Babonya Kosgey. The property of a deceased person vests in their personal representatives (executors or administrators) upon the issuance of a valid grant of representation by a competent succession court. A beneficiary, regardless of their degree of kinship to the deceased or the magnitude of their expected share, lacks the legal capacity or standing to institute civil proceedings for the recovery, preservation, or adjudication of property rights belonging to the unadministered estate of a deceased person. Only a person holding a valid Grant of Letters of Administration or a Grant of Probate has the statutory authority to sue or be sued on behalf of the estate. Indeed, the Applicant should have obtained a duplicate death certificate as a matter of urgency and then filed for a Grant of Letters of Administration *Ad Litem* before instituting these proceedings. The alleged extreme urgency of the impending partition and the misplacement of the deceased’s original death certificate cannot be excused in light of settled provisions of law. This lack of capacity prevents the Court from finding that the Applicant has established a prima facie case at this stage of the proceedings. 2. Second, the documentary evidence placed before this Court by the Respondents shows that the dispute has exhausted the hierarchy of the Kenyan judicial system. In ELC Civil Case No. 105 of 2007, the Environment and Land Court (Kibunja, J.) heard the Applicant’s counterclaim for a half-share of the property, based on the same argument and narrative of a joint purchase by Babonya Koskey and Richard Kipruto. The Court dismissed that counterclaim on 5 October 2016. 3. Dissatisfied, the parties escalated the matter to the Court of Appeal in Civil Appeal No. 128 of 2018. Following a negotiated settlement, the parties’ respective counsel recorded a consent order on 12th May 2023, which finally apportioned 10 acres to the Applicant’s family and the remainder to the Respondents. The Applicant’s primary justification for the current suit is that the Court of Appeal consent order was obtained by fraud and collusion, and without his instructions, by his former advocate. However, the record unequivocally demonstrates that the Applicant had already litigated this grievance before the appropriate forum. On 3rd October 2025, the Court of Appeal delivered a ruling dismissing the Applicant’s application to review and set aside the consent judgment on those grounds. Essentially, the Court of Appeal has conclusively determined the parties’ rights regarding the subdivision of the suit property. This Court cannot halt the implementation of the Court of Appeal’s decision by granting temporary injunctive relief. This reinforces this Court’s finding that the Applicant has failed to establish a prima facie case. 4. Finally, regarding the substantive claim of adverse possession, this Court is mindful that it should not make a final decision on adverse possession at this interlocutory stage, as that is an ultimate determination reserved for the full hearing of the main suit. While the Respondents have challenged the Applicant’s possession, pointing out that the Applicant’s National Identity Card shows he was born in 1976 and could not have commenced possession in 1968, and that continuous litigation interrupts the requisite peaceful possession, it is not for this Court to conduct a mini-trial on those facts in this application. However, the issue of locus standi and the Court of Appeal’s determination of the dispute concerning the suit land are sufficient to conclude that the Applicant has failed to establish a prima facie case with a probability of success. **Irreparable Injury** 1. Because the conditions in ***Giella v Cassman Brown*** are sequential, the Applicant’s failure to establish a prima facie case ordinarily ends the Court’s inquiry. The application fails at the first hurdle. However, to ensure comprehensive consideration of the submissions, the Court will briefly consider the second limb: irreparable injury. 2. Irreparable injury, as defined in ***Pius Kipchirchir Kogo v Frank Kimeli Tenai [2018] eKLR***, means an injury that cannot be adequately compensated for in damages. The applicant must show that the injury will occur if the injunction is not granted and that there is no other remedy open to protect himself from the consequences of the apprehended injury. 3. The Applicant’s counsel cited ***Sewe v Ogutu (supra)*** to argue that eviction from land with sentimental and generational value constitutes irreparable harm. The Applicant further relied on ***Panari Enterprises Limited v Lijoodi & 2 others (supra)*** to emphasise the unique, irreplaceable nature of land. While this Court fully acknowledges the jurisprudential principle that land is generally considered unique and that eviction often inflicts harm that is difficult to quantify in damages, the concept of irreparable injury in equity carries a caveat: the threatened harm must be an infringement of a prima facie legally recognisable right. 4. The impending survey, partition, and potential eviction of the Applicant from the excess acreage are lawful and not malicious acts by the Respondents. They constitute the judicially sanctioned execution of a valid court decree. An individual cannot suffer legally cognisable irreparable injury from the lawful execution of a superior court’s judgment. The 10 acres lawfully allocated to the Applicant by the Court of Appeal Consent Order are preserved; the execution relates strictly to the remaining acreage allocated to the Respondents. Therefore, the Applicant has failed to demonstrate that he will suffer irreparable injury within the meaning of the law. **The Balance of Convenience** 1. The third limb of the ***Giella*** test is only invoked when the Court is in doubt regarding the first two conditions. In this matter, the Court harbours absolutely no doubt. The Applicant relies on ***Ainea W. Ndombi v Saimon O. Loukeri (supra)***to argue that the balance of convenience favours a claimant in actual physical occupation. However, this general rule cannot supersede the reality of the present case. The Respondents hold a final order from the Court of Appeal. Granting an injunction to stay the execution of the order would effectively hold the Respondents’ property rights hostage to endless, repetitive litigation. The balance of convenience, therefore, favours refusing the injunction. **Final Orders** 1. The Applicant has failed to satisfy the criteria for the grant of an interlocutory injunction under the ***Giella v Cassman Brown*** principles. Consequently, the Court finds no merit in the Applicant’s Notice of Motion dated 16th April 2026. The application is hereby dismissed in its entirety, with costs to the 1st and 2nd Respondents. Delivered virtually, signed and dated this 9th day of July 2026. C. C. Oluoch Judge In the presence of: Ms Too for the Applicants Mr David Otieno for the Respondents Faith Court Assistant