https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3331

Kaperur (Suing as the representative of the Estate of the David Rotich Kaperur) v Kaperur & 3 others (Environment and Land Case E011 of 2026) [2026] KEELC 3331 (KLR) (3 June 2026) (Ruling) Neutral citation: [2026] KEELC 3331 (KLR) Republic of Kenya In the Environment and Land Court at Kitale Environment and Land Case E011 of 2026 CK Nzili, J June 3, 2026 Between Damaris Chenangat Kaperur (Suing as the representative of the Estate of the David Rotich Kaperur) Plaintiff and Florence David Kaperur 1st Defendant Moses Molo Kaperur 2nd Defendant Boaz Pkemoi Kaperur 3rd Defendant Georgina Cheyesh Kaperur 4th Defendant Ruling 1.By an application dated 17/2/2026, the court is asked to issue a temporary injunction barring and restraining the respondents, their agents, servants, assigns, or employees, from selling, transferring, charging, subdividing, evicting, and or interfering with the applicant’s use of Land Title No. West Pokot/Siyoi “A”/91, the suit land. The court is also asked to order that the Land Registrar, West Pokot County, register an inhibition against the title register of the suit land, pending hearing and determination of this suit. 2.The reasons are contained on the face of the application and a supporting affidavit of Damaris Chenangat Kaperur, sworn on 17/2/2026. 3.Briefly, the applicant brings the suit as a legal representative of the late David Rotich Kaperur, who originally owned the suit land as per the ID, copy of green card, grant, and title deed attached as annexures marked DCK-1(a) and (b), DCK-2(a) and (b), (3) and (4), which land as per the title deed has been transferred to the 1st respondent’s name, to hold in trust for all the lawful heirs or beneficiaries of the estate of their deceased father. 4.The applicant deposes that she only recently established that she has been excluded or disinherited, as the respondents have since sold portions of the suit land and threaten to evict her as if she has no beneficial interests. She attached a copy of evidence of interest as per the chief’s letter annexed as DCK-(5). 5.Further, the applicant deposes that the suit land is ancestral, is her home, and the only source of livelihood, which interests, unless the respondents are restrained, shall continue alienating the same, hence defeating the substratum of this suit. 6.The application is opposed through a replying affidavit of Florence David Kaperur, the 1st respondent, on behalf of the rest of the respondents, sworn on 8/5/2026. The 1st respondent admits that she is the registered owner of the suit land following confirmation of the grant of letters of administration in 1988, which followed due process. 7.It is deposed that the applicant left the Siyoi home 24 years ago after completing college and has never come back. The 1st applicant deposes that the applicant’s mother, who was her co-wife, lived at Lomut, on a commercial plot owned by the late husband, as a rental business, as per annexure marked FDK-(1), while also rearing animals in Pachu Group Ranch, where the deceased was a shareholder as per annexure marked FDK-(2). 8.The 1st respondent deposes that it was the intention of the deceased husband for the two wives to live separately at Lomut and Siyoi. It is deposed that after the deceased died in August 1980, the applicant’s mother was employed by the government, became a drunkard, and became uncaring to the applicant, to which the 1st respondent brought her to her home, and assumed her care, including her schooling. 9.The 1st respondent deposes that the applicant's mother had also sued her in Kitale ELC No. 28 of 2022 as per annexure marked FDK-(3), which suit she withdrew on 9/10/2024. The 1st respondent denies that the applicant or her mother has lived on any part of the suit land, to be entitled to any of the reliefs sought, to stop the respondents from evicting her from the suit land. 10.Though parties were to file written submissions by 30/3/2026, none were filed and served as ordered. 11.Order 40 Rules (1) and (2) of the Civil Procedure Rules grants this court powers to issue a temporary injunction where it is provided by affidavit or otherwise, that any disputed property in a suit is in danger of being wasted, damaged or alienated by any party to the suit, or where there is a danger of it being taken away to avoid any likely execution of a decree against it. An applicant must meet the ingredients set out in Giella -vs- Cassman Brown & Co. Ltd [973] EA 358. 12.A prima facie case is established where, based on the material before the court, a right has been infringed or breached, to call for a rebuttal from the opposite party, as held in Mrao Ltd -vs- First American Bank of (K) Ltd & Others [2003] eKLR.The primary pleadings by the plaintiff are the plaint dated 17/2/2026. She pleads that the suit land was an ancestral home or land belonging to two ‘houses’, which were shared and or transferred on 7/4/1988, while she was of tender age, without disclosure of her interests by the 1st and 2nd defendants, while petitioning for letters of administration, that there was a second house and minors. 13.The plaintiff has based her claim on trust or recognition of her beneficial interest. The plaintiff avers that the 1st defendant is guilty of breach of fiduciary trust in excluding her from the benefit of the suit land. The plaintiff pleads that the matter was referred to the national administration offices until August 2025, when there was no agreement, hence the filing of the suit. The plaintiff prays for a declaration that the 1st defendant holds the suit land in trust and that she has a beneficial interest therein. 14.In the replying affidavit sworn on 8/5/2026, the defendants admit they are related to the plaintiff and that her mother had filed Kitale ELC No 28 of 2022 as per a plaint dated 18/10/2022, advancing the concept of trust. The 1st defendant had filed a statement of defence dated 22/11/2022, making an admission to the relationship of the plaintiff’s mother with the late husband, and the filing of Succession Cause No. 44 of 1987, excluding the co-wife and the plaintiff in the proceedings. 15.Overriding interests need not be registered on the title register but subsist with the land. In establishing whether there is a prima facie case, the court does not conduct a mini-trial or make definitive findings on law or facts. All that is supposed to guide the court is weighing the affidavits on whether there is an arguable case for trial. I think the plaintiff in this matter has established a right or interest in the suit land, which is not remote as held in Kiebia -vs- M’Lintari [2018] eKLR, on customary trust. 16.Irreparable loss or damage refers to that which is not monetarily quantifiable. It must be real, imminent, and apparent. 17.Mere fear, speculation or apprehension is not enough, as held in Nguruman Ltd -vs- Jan Bonde Nielsen & Others [2014] eKLR. 18.Coming to the balance of convenience, it should be one that the applicant will suffer more compared to the respondent in the absence of an injunction, and the suit ultimately succeeds or fails. See Pius Kipchirchir Kogo -vs- Frank Kimeli Tenai [2018] eKLR, where it was held that where a right or interest is not denied, but its breach is contested, the court seeks to maintain the status quo based on the lesser evil or risk of inconvenience. 19.Inhibition orders are provided by Section 68 of the Land Registration Act. The purpose is to prohibit registration of any new dealings over the title register of the land in dispute. 20.The applicant has blamed the respondents for disposing of part of the suit land with the intention of defeating her beneficial interest. On the other hand, the applicant has not denied that she has not been in occupation of the suit land for over 24 years, and that she has no existing developments, use, or possession of the suit land. 21.Balancing the two competing interests, I think the orders of temporary injunction and inhibition are meritorious. 22.The court proceeds to issue,a.An order of temporary injunction is hereby issued barring and restraining the respondents, their agents, servants, assigns, or employees, from selling, transferring, charging, subdividing, evicting, and or interfering with the applicant’s use of Land Title No. West Pokot/Siyoi “A”/91.b.An order is hereby issued directing the Land Registrar, West Pokot County, to register an inhibition against the title register to Land Title No. West Pokot/Siyoi “A”/91.c.The orders issued in (a) and (b) above shall last for one (1) year only, from the date hereof.d.Costs in the cause. 23.Orders accordingly. RULING DATED, SIGNED, VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 3RD DAY OF JUNE 2026.HON. C.K. NZILIJUDGE, ELC KITALE.RULING DELIVERED VIA MICROSOFT TEAMS/OPEN COURT AT KITALE ON THIS 3RD DAY OF JUNE 2026.In the presence of:Court Assistant - MatuiMs. Nafula holding brief for Mr. Samba for the defendantsN/A for the applicantHON. G.M. GITONGAJUDGE, ELC KITALE.