https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2952

Keter & another v Keter (Environment and Land Case E010 of 2026) [2026] KEELC 2952 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEELC 2952 (KLR) Republic of Kenya In the Environment and Land Court at Eldoret Environment and Land Case E010 of 2026 CK Yano, J May 14, 2026 Between Judith Jepchumba Keter 1st Plaintiff Jacob Kipkemboi Keter 2nd Plaintiff and Abraham Kipchillan Keter Defendant Ruling 1.By a Notice of Motion dated 2nd February, 2026, the plaintiffs/Applicants seek for an order of injunction restraining the defendant from trespassing, entering, alienating, selling, leasing and/or in any manner interfering with L.R No. Pioneer Ngeria Block 1 (EATEC)/2176 pending hearing and determination of the suit, and the OCS, Langas Police Station to ensure compliance as well as costs of the application. 2.The application is anchored on the facts deponed on the affidavit sworn by Judith Jepchumba Keter the 1st Applicant on even date. She avers that she is the registered owner of Land Parcel No. Pioneer Ngeria Block 1 (EATEC)/2176 (the suit property), which she acquired by way of gift from the 2nd Plaintiff who is her father. She has annexed copies of the title deed and other acquisition documents. 3.The 1st Applicant avers that the 2nd applicant had granted permission by way of a licence to the respondent to utilize the suit property subject to a vacation notice. That on or about 15.04.2021, the 2nd applicant issued a Notice to the respondent to vacate the suit property, but the respondent ignored and/or refused to yield to the notice, thus rendering the respondent a trespasser and rendering these proceedings necessary. A copy of the notice has also been annexed. 4.It is the deponent’s contention that this being a season to prepare farms for purposes of planting, unless the respondent is restrained from cultivating, the 1st applicant will lose income derived from the suit property which will occasion her irreparable loss. That the respondent’s acts are unlawful and in violation of the 1st applicant’s right to quiet and exclusive possession, use and/or utilization of the suit land. 5.The 1st applicant contended that being the registered proprietor of the suit land, she has demonstrated a prima facie case with overwhelming chances of success to justify granting of interlocutory order of injunction. That it is in the interest of justice and to avert unnecessary confrontation, and/or breach of peace that Police officers ensure the orders issued are complied with. 6.The Defendant/Respondent opposed the applications through a Replying Affidavit sworn by himself on 2.3.2026. He averred that he is the biological brother to the 2nd Plaintiff and at the time of purchasing the suit land they jointly engaged in charcoal burning and selling business to earn their livelihood. The respondent averred that he mostly engaged in the grounds work of acquiring and burning the charcoal while the 2nd plaintiff was entrusted with soliciting for market and selling the charcoal. That most times, the 2nd plaintiff retained most of the proceeds as he totally trusted him as his brother. 7.The respondent averred that in or about the year 2003, they agreed to use the proceed of their joint business to purchase the suit property. That the respondent contributed in excess of KShs. 330,000/= towards the purchase price while the 2nd Plaintiff contributed the extra amount. That the respondent entrusted his contribution of KShs. 330,000/= to the 2nd plaintiff to facilitate payment and processing of the title documents on behalf of both of them, and it was expressly agreed that the land would be shared proportionately to their respective contributions, and that the 2nd plaintiff would process title and thereafter transfer the defendant’s share to him. 8.The Respondent deponed that upon completion of the purchase price, he physically entered the land in the year 2004 and exclusively utilized it until recently when the 2nd plaintiff requested to till a portion measuring approximately 1 acre and he could sometimes utilize his share in grazing his livestock. 9.The Respondent reiterated that in the year 2004, he took occupation of his portion, constructed a house, planted trees and commenced farming thereon and has been in open, peaceful, continuous and uninterrupted occupation of the same todate. 10.The Respondent deponed that prior to the purchase of the land, he together with the 2nd plaintiff lived in their father’s land, and immediately upon acquisition of the suit land, the respondent immediately, and permanently moved out of their father’s land and left the 2nd plaintiff thereon. The Respondent has exhibited a bundle of photographs of his house, trees and developments on his portion to buttress and substantiate his use and claim of the land. He denied the allegation that he is occupying the suit property merely by licence as pleaded by the applicants. 11.The Respondent further argued that the 2nd Plaintiff processed title wholly in his own name contrary to the terms of their agreement and later transferred the entire property to the 1st Plaintiff, his daughter, with the intention of defeating the defendant’s legal interest. That the alleged Land Control Board consent alleged to have been obtained by the plaintiffs was improperly procured from a different jurisdiction which is Kesses Sub-County, instead of the proper board for the suit property’s location, which is Kapseret sub-county, demonstrating bad faith and irregularity in the transfer process. That the local administration who play a crucial role in obtaining of the Land Control Board Consent are aware of the defendant’s interest in the land. 12.It is the respondent’s contention that the applicants have not established a prima facie case with a probability of success because they have not refuted the respondent’s evidence of joint contribution and resulting legal interest. The respondent further contended that he together with his immediate family rely on the suit property for residence and livelihood, and if the orders sought are granted, they will be rendered homeless and suffer irreparable loss which cannot be adequately compensated in damages. That granting the injunction will effectively amount to eviction before trial, and will cause serious prejudice to the respondent and his family, while the applicants have not demonstrated that they will suffer greater harm if the injunction is refused. That maintaining the status quo by refusing the injunction preserves the rights of all parties and prevents injustice until the suit is heard and determined. 13.The Respondent argued that the applicants have not established a prima facie case with a probability of success. That the alleged harm to the applicants can be compensated in damages and the balance of convenience favours refusing the application and maintaining the status quo. The respondent urged the court to dismiss the application with costs. 14.In their supplementary affidavit sworn by Jacob Kipkemboi Keter, the 2nd plaintiff on 12.3.2026, the applicants denied that the respondent contributed to acquisition of the suit property and reiterated that the respondent has been utilizing a portion of the suit land by dint of a licence and/or permission granted by the 2nd applicant. That the land is situated within Kesses sub-county where the consent of the Land Control Board was granted. 15.The applicants urged the court to grant the orders sought herein, adding that in the event the court orders for status quo, it should issue a conditional order of the same whereof the respondent deposits a sum of Kshs. 500,000/= in court or joint account of the advocates since the respondent is a man of little means or a man of straw and would not be in a position to pay damages in the event the suit succeeds. Submissions: 16.The application was canvassed by way of written submissions and both parties complied by filing their respective submissions which I have read and considered and I need not reproduce the same in this ruling. Analysis and Determination: 17.The court has considered the application, the affidavits in support and against and the rival submissions filed by the parties as well as the authorities relied on. The main issues for determination are whether the applicants have met the requirements for the grant of an order of temporary injunction and whether the orders sought are tenable at an interlocutory stage. 18.The principles to be applied when considering an application such as this are well settled. In the case of Giella –vs- Cassman Brown & CO. Ltd (1973) EA 358, the applicant must show that the has a prima facie case with a probability of success; that he stands to suffer irreparable damage which would not adequately be compensated by an award of damages; and thirdly, if the court is in doubt, it will decide the matter on the balance of convenience. 19.The first question is whether the applicants herein have made out a prima facie case with a probability of success. In the case of Mrao Ltd –Vs- First American Bank of Kenya Limited & 2 others (2003) KECA 175 (KLR), a prima facie case was described 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 would conclude that there exited a right which had apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.” 20.In this case, there is no dispute that the suit property is registered in the name of the 1st Applicant. It is also not in dispute that the respondent is in possession and occupation. The applicants’ case is that the respondent entered the suit land and is utilizing it upon being granted permission by way of a licence by the 2nd Applicant. That on 15.4.2021, the 2nd applicant issued a notice to the respondent to vacate the property, but the respondent ignored and/or refused to yield vacant possession and therefore is now a trespasser. 21.On his part, it is the respondent’s case that he jointly acquired the suit land with the 2nd applicant and is therefore entitled to the portion that he has been in possession, occupation and use and which he has also developed over the years. 22.From the application and the affidavit evidence, it is apparent that the orders sought are in the form of a mandatory injunction. The standard of approach when considering whether or not to grant an interlocutory mandatory injunction is higher than that of a prohibitory injunction. In the case of Locabail International Finance Ltd –vs Agro Export & Another (1986)/ALL ER 901, it was stated:-“A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances and then only in clear case either where the court thought that the matter ought to be decided at once or where the injunction was at a simple and summary act which could easily be remedied or where the defendant had attempted to steal a match on the plaintiff. Moreover, before granting a mandatory injunction the court has to feel a high sense of assurance that at the end of the trial, it would appear that the injunction had rightly been granted, that being a different and higher standard than required for a prohibitory injunction.” 23.In this case, both the applicants and the respondent claim ownership of the suit property. Though the applicants have exhibited title in their favour, it is not in dispute that the respondent is in possession and occupation. The question as to whether the land solely belongs to the applicants and that the respondent is in occupation and use with their permission, or whether the respondent is entitled to a portion of the land can only be decided once the suit is heard and determined. The suit is not yet determined and granting the orders sought will mean the respondent will be evicted at an interlocutory stage. 24.Having carefully considered the material before me, I am not satisfied that a case for mandatory injunction has been made out. In my view, the respondent can still be evicted in the event that the applicants succeed at last. Moreover, I note that one of the prayers sought in the plaint is an order of eviction. 25.The upshot of this is that the Notice of motion dated 2nd February, 2026 lacks merit and the same is dismissed with costs to the respondent. 26.Orders accordingly. DATED, SIGNED AND DELIVERED VIRTUALLY AT ELDORET ON THIS 14TH DAY OF MAY, 2026 VIDE MICROSOFT TEAMS.HON. C. K. YANOELC, JUDGEIn the presence of:-Mr. Mitei Lemeto for Defendant.No appearance for Plaintiff.Court Assistant - Laban.