https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4938

**+** **** **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT ITEN** **ELCLC NO. EO05 OF 2026** **ELIJAH KIPKEMBOI KORIR (Suing as the administrator of the Estate of CHERONO CHEMOR …….……..………..………… PLAINTIFF** **VERSUS** **PIUS KIPKEMBOI CHERUIYOT ………………………… 1ST DEFENDANT** **JOSEPH KIPCHUMBA CHERUIYOT ……………….….. 2ND DEFENDANT** **DANIEL KIPROTICH CHEPKIYENG (Suing as the administrator of the Estate of CHERUIYOT CHEMOR SOKOTI ……. 3RD DEFENDANT** **RULING** 1. The Plaintiff herein **ELIJAH KIPKEMBOI KORIR** suing as the Administrator of the Estate of the late **CHERONO CHEMOR** (herein after **CHEMOR**) moved to this court vide his plaint dated 23rd February 2026. He has filed this suit against **PIUS KIPKEMBOI CHERUIYOT, JOSEPH KIPCHUMBA CHERUIYOT and DANIEL KIPROTICH CHEPKIYENG** sued as the Administrators to the estate of **CHERUIYOT CHEMOR SOKOT** (herein **SOKOTI**) with regard to the ownership of the land parcel **No. IRONG/SERGOIT/120** (the suit land). It is the plaintiff’s case that the suit land has always been the property of **CHEMOR SAMOEI SOKOTI** who was the father of both **CHEMOR** and **SOKOTI**. That during the land adjudication process, the suit land was registered in the name of **SOKOTI** to hold in trust for himself and his brother **CHEMOR** in equal shares. That the said **SOKOTI** and **CHEMOR** lived peacefully on the suit land until their demise. 1. However, following succession proceedings in **ELDORET CHIEF MAGISTRATE’S COURT SUCCESSION CAUSE NO. 425 OF 2017,** the suit land has been registered in the name of **PIUS KIPKEMOI CHERUIYOT**, the 1st Defendant herein. Those proceedings have since been declared incompetent necessitating the filing of **ITEN HIGH COURT SUCCESSION CAUSE NO. E003 of 2025**. The defendants have however refused to sub-divide the suit land and transfer half share to the Plaintiff. The Plaintiff seeks, inter alia, an order that the suit land belongs to the estate of **SOKOTI** and **CHEMJOR** in equal shares, the trust be determined and the same be sub-divided in equal shares. 2. Contemporaneously with the plaint, the Plaintiff filed a Notice of Motion dated 25th February 2026 and filed on 27th February 2026. He seeks the following orders: 3. **Spent** 4. **Spent** 5. **Pending the hearing and determination of this suit, the Defendants be restrained through an order of injunction from selling, sub-dividing or charging the suit land.** 6. **Costs be borne by the Defendants.** 7. The basis to the Motion is that **SOKOTI** and **CHEMJOR** were brothers and the suit land was inherited by their father. That **SOKOTI** and **CHEMJOR** have peacefully occupied the suit land and their families are in occupation of the same because it is held in trust. 8. The Defendant are yet to file their defences. They have however filed a replying affidavit by the 1st Defendant dated 12th March 2026 in response to the Motion. He has averred, inter alia, that he and his late mother filed succession proceedings at **ELDORET CHIEF MAGISTRATE’S COURT SUCCESSION CAUSE NO. 425 OF 2017**. The Plaintiff filed objection proceedings seeking conservatory order to restrain the Defendants from intermeddling with the suit land. However, those objection proceedings were dismissed and the Grant was confirmed. However, following an application by the Plaintiff’s counsel, the Defendants were directed by **NYAKUNDI J**. to file fresh succession proceedings in the **HIGH COURT ITEN** before **ITEN P & A CAUSE NO. E003 of 2025** which is due for confirmation of Grant on 27th April 2026 (now past). 9. He confirms that indeed **SOKOTI** and **CHEMOR** were brothers who also had another brother called **KIMAMET**. That the three brothers moved from their ancestral land in Kerio Valley and while **SOKOTI** settled in **KAPLAMAI, CHEMOR** settled in **SERGOIT** location. That **SOKOTI** was registered as the sole owner of the suit land in 1962 and was issued with the title deed in 1974. The claim that the suit land is ancestral land held in trust is not correct. The Plaintiff lives in Sergoit sub-location and not on the suit land. He is a grandson of **SOKOTI** and therefore a stranger to his (**SOKOTI’S**) estate. The Plaintiff is forum shopping as he is actively involved in **ITEN HIGH COURT P&A SUCCESSION CAUSE NO. E003 OF 2025**. The suit land, he reiterates, is not trust land. 10. The Plaintiff filed a supplementary affidavit in which he repeated that the suit land is ancestral land and that he is filing this suit on behalf of his late father who was a son to his late grandfather. That he has cogent evidence that the suit land is held in trust and where he lives is irrelevant for the purposes of this suit. That he is not a stranger to the estate of **SOKOTI** and neither is he forum shopping. That the failure to reflect a trust on the register does not defeat the existence of a trust and his defence of consanguinity is only relevant in a succession cause and not in this court and he has not filed any document in **ITEN HIGH COURT P&A CAUSE NO. E003 of 2025.** 11. The motion has been canvassed by way of written submissions. The same have been filed by **MR. WAINAINA** instructed by the firm of **ANASSI MOMANY & COMPANY ADVOCATES** for the Plaintiff and by **MR. BARMAO** instructed by the firm of **E. BARMAO & COMPANY ADVOCATES** for the Defendants. 12. I have considered the Motion, the rival affidavits and annextures thereto as well as the submissions by counsel. 13. The Principles governing the grant of an interlocutory injunction are now well settled. In the case of **GIELLA V. CASSMAN BROWN & COMPANY LTD 1973 E.A 358,** the court stated that those principles are: 14. **The Applicant must establish a prima facie case with a probability of success.** 15. **The Applicant must demonstrate that unless the order is granted he will suffer irreparable harm which cannot be compensated by an award of damages.** 16. **If in doubt, the court will determine the application on a balance of convenience** 17. And as was stated in the case of **FILMS ROVER INTERNATIONAL & OTHERS V. CANNON FILMS SALES LTD 1986 3 ALL ER 776** per **HOFFMAN J**, in considering such an application, the court should take whichever cause appears to carry the lower risk of injustice if it should turn out to have been wrong. 18. From the evidence before me, it is clear that the parties herein shall some relationship. In paragraphs 2 and 3 of his supporting affidavit, the Plaintiff suggests that the suit land is registered in the name of **SOKOTI** who was a brother to **CHEMOR** and the two brothers lived peacefully on the said suit land. He has approached this court as the Administrator of the estate of **CHEMOR**. The parties have not denied their relationship. What matters really is the degree of consanguinity. The 1st Defendant in paragraph 8 of his replying affidavit refers to the Plaintiff as “**a distant relative with his own father and land.**”. The Plaintiff’s claim is based on a customary trust and among the issues which the trial court will consider is whether the Plaintiff will establish at the trial that the suit land is family land. 19. Has the Plaintiff established a prima facie case which, in the case of **MRAO LTD V. FIRST AMERICAN BANK OF KENYA LTD & OTHERS 2003 [2003 KLR 125] eKLR,** was defined as; **“ …….. a case which, on the material presented to the court, a tribunal property directing itself would conclude that there existed a right which had apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter”?** 1. And in the case of **NGURUMAN LTD V. NIELSEN & 2 OTHERS C.A CIVIL APPEAL NO. 77 OF 2012 [2014 KECA 606 KLR],** the same court adopted the definition set out in the **MRAO** case and proceeded to add that: **“ The party on whom the burden of proving a prima facie case lies must show a clear and unmistakable right to be protected which is directly threatened by an act sought to be restrained, the invasion of the right has to be material and substantive and there must be an urgent necessity to prevent the irreparable damage that may result from the invasion. 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 not examine the merits at 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 preponderance of probabilities. This means no move than that the court takes the view that on the face of it, the applicant’s case is more likely than not to ultimately succeed.”** 1. Given the family relationship between the Plaintiff and the Defendants and the fact that the claim to the suit land is premised on a customary trust, I am persuaded that the Plaintiff has established a prima facie case as set out in the above precedents. 2. With regard to irreparable loss which cannot be compensated by an award of damages, it is clear that if the suit land is transferred before the trial, the Plaintiff and other interested parties may lose their inheritance. It is important that this court issues orders which will ensure that the suit land is protected pending the hearing and determination of this suit. 3. If this court were to be in doubt, which I am not, the balance of convenience tilts in allowing the Motion. And guided by the decision in the case of **FILMS ROVER INTERNATIONAL & OTHERS V. CANNON FILM SALES LTD (Supra)** the course which appears to me to carry the lower risk of injustice if I should be wrong, is to grant the orders sought. 4. Ultimately therefore and having considered the Motion herein, this court issues the following orders: 5. **An order of inhibition is hereby issued inhibiting the registration of any dealing with the land parcel NO. IRONG/SERGOIT/120 through transfer, sub-division or charging pending the hearing and determination of this case.** 6. **An order of status quo is issued and there shall be no eviction of any of the parties or their families who are already on the land parcel NO. IRONG/SERGOIT/120.** 7. **Parties to bear their own costs.** 8. **The parties shall ensure that this suit is heard and determined within the next 12 months, otherwise this order shall lapse unless extended by this court.** **BOAZ N. OLAO** **JUDGE** **30TH JULY 2026** **Ruling dated, signed and delivered by way of electronic mail on this 30th day of July, 2026 with notice to the parties.** **BOAZ N. OLAO** **JUDGE** **30TH JULY 2026**