Kosgei v Barno & 4 others (Environment and Land Case E033 of 2025) [2026] KEELC 5022 (KLR) (29 July 2026) (Ruling)

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAPSABET** **ELCC NO. E033 OF 2025** **CHRIS KIPKEMBOI KOSGEI……………………..PLAINTIFFAPPLICANT** **VERSUS** **KIPLIMO BARNO…………………………1ST DEFENDANT/RESPONDENT** **KIPKOGEI BARNO………………………2ND DEFENDANT/RESPONDENT** **ESTHER JEPCHIRCHIR TUWEI……….3RD DEFENDANT/RESPONDENT** **LAND REGISTRAR, KAPSABET…………4TH DEFENDANT/RESPONDENT** **HON. ATTORNEY GENERAL………….5TH DEFENDANT/RESPONDENT** **RULING** 1. This ruling is in respect of a Notice of Motion dated 21st November 2025 (The application) by the Plaintiff/Applicant through his counsel, Onkoba Omariba & Company Advocates seeking the principal orders, *inter alia*: 2. That this Honourable court be pleased to issue Restraining orders upon the 1st, 2nd and 3rd Defendants, their agents, servants or anyone acting on their instructions from entering or interfering in any manner with the occupation and/or use of the property known as plot **No. 33 KABOTE FARM** (The suit land) as per the area list, being a proposed excision and subdivision of **LR. No. 9399/R** (The parent land) pending the hearing and the determination of the suit herein. 3. Costs of Application be in the cause. 4. The Plaintiff/Applicant relied on several grounds and an affidavit in support of the application. The grounds include; 5. The plaintiff/applicant is the lawful sole owner of the suit land as per the area list, being a proposed excision and subdivision of the parent land herein. 6. The parent land is a settlement for squatters by the Nandi Tea Estate limited of its former employees and neighbours. 7. The Plaintiff acquired the parent land and has been in occupation of the property since the year 2000. 8. That on or about the year 2025 the 1st, 2nd and 3rd Defendants/Respondents encroached the suit land claiming ownership and sought to evict the employees of the Plaintiff/Applicant without his consent and on permission. 9. That the actions of the 1st, 2nd and 3rd Defendants amount to trespass and an attempt to wrongfully acquire his property. 10. That it is in the interest of justice for this Honourable court to allow the orders as prayed by the Plaintiff. 11. The Defendants/Respondents opposed to the application through their replying affidavit sworn by the 3rd defendant/respondent on behalf of the 1st and 2nd Defendants/Respondents. They stated that in the year 1997 the Plaintiff purchased a 2-acre parcel situated in Kaptien area and that it was that land only to which the Plaintiff holds any legitimate claim. That Plaintiff was evicted from the Kaptien property by his neighbors. 12. Also, they stated that while in temporary permissive occupation, the Plaintiff took advantage of the 3rd Defendant and procured and/or facilitated the fraudulent change of ownership of plot number 33 (a subdivision of plot number 19) from the name of the 3rd Defendant into his own name in the area list of Kabote Farms Co-Operative Society. That when the 3rd Defendant noticed the change, she tried to talk to the Plaintiff to understand what was happening but that the Plaintiff instead filed the current suit and application herein. 13. In a supplementary affidavit 23rd June 2026, the applicant introduced a formal letter addressed to the Assistant Chief from the Chairperson of the Kabote Co-operative Society Limited, and a letter from the Assistant Chief of Kabote Sub-Location. The applicant averred in part; That the specific new evidence consists of photo evidence that the suit herein is an active tea farm and not a residential plot as was subsequently alleged in open court by the 1st, 2nd and 3rd Defendants’ Advocates as per the photographs duly marked as “CKK-1” and annexed thereto. That the said photographs could not have been filed alongside the initial application as they were taken recently to directly rebut the false oral assertions made by the 1st, 2nd and 3rd Defendant’s Advocates in court regarding the current physical state and utilization of the suit land. That this new evidence is highly relevant as it goes to the root of ownership and the preservation of the substratum of the suit land, ensuring the court is not misled by inaccurate descriptions of the land. 14. The Plaintiff through CM Advocates LLP, filed written submissions dated 3rd July 2026 and supplementary submissions dated 22nd July 2026 in response to issues that had arisen in the Defendant’s submissions in supported of the Application for preservation orders. It was submitted that he has been in actual physical possession of the suit land and bound to suffer irreparable damage if the orders sought in the application are not granted. Reliance was made on several authorities to reinforce the submissions. 15. The 1st, 2nd and 3rd Defendant/Applicants through Yuri Law & Associates Advocates filed their written submissions dated 16th July 2026 stating that the root of the title that the Plaintiff purported to hold over the suit land was tainted with illegality. They submitted that the Plaintiff fraudulently got his name on the Area List and thus he did not hold good title. That the Plaintiff had come before equity with unclean hands and thus, was not entitled to the orders sought in the application. 16. In the foregone, two issues arise for determination by this Court namely: 17. Has the Plaintiff/Applicant met the threshold for grant of the injunctive orders sought? 18. What orders can issue for the ends of justice herein? 19. The Plaintiff/Applicant seeks for a restraining order against the Defendants in respect of the suit land. The application is premised upon Order 40 Rule 2 of the Civil Procedure Rules 2010 which reads; *‘In any suit for restraining the defendant from committing a breach of contract or other injury of any kind, whether compensation is claimed in the suit or not, the plaintiff may, at any time after the commencement of the suit, and either before or after judgment, apply to the court for a temporary injunction to restrain the defendant from committing the breach of contract or injury complained of, or any injury of a like kind arising out of the same contract or relating to the same property or right.’* 1. The land mark case of **Giella v Cassman Brown & Company Ltd (1973) EA 358** laid down the requirements to be met by an applicant seeking injunctive orders as follows: 2. A prima facie case with a probability of success. 3. Irreparable injury that cannot be compensated by damages. 4. A balance of convenience if the court is in doubt. 5. In the case of **Nguruman Ltd v Nielsen & 2 others (Civil Appeal 77 of 2012) [2014] KECA 606 (KLR), the Court of Appeal** expounded on the three requirements for the grant of injunctive orders thus: *“These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially. If the applicant establishes a prima facie case that alone is not sufficient basis to grant an interlocutory injunction, the court must further be satisfied that the injury the respondent will suffer, in the event the injunction is not granted, will be irreparable. In other words, if damages recoverable in law is an adequate remedy and the respondent is capable of paying, no interlocutory order of injunction should normally be granted, however strong the applicant’s claim may appear at that stage. If prima facie case is not established, then irreparable injury and balance of convenience need no consideration. The existence of a prima facie case does not permit “leap-frogging” by the applicant to injunction directly without crossing the other hurdles in between.”* 1. Undoubtedly, section 13 (7) of the Environment and Land Court Act empowers this court to grant any interim or permanent preservation orders. These include injunctions and status quo orders. 2. It is trite law that status quo order is meant to preserve the land in question pending the outcome of the suit or until the same is terminated**; see Festus Ogada v. Hans Mollin (2009) (KECA) 409 (KLR**). 3. The present suit has very highly contested facts. Given the contested facts from both sides, the court’s option is to grant an order of status quo in the circumstances as held in the case of **Ogada** (supra) **and Musa Angira Angira vs Industrial and Commercial Development Corporation (2015) eKLR.** 4. To that end, this Court finds that the Application dated 21st November 2025 is merited for status quo order in lieu of injunctive relief sought in the same on the following terms: 5. An order of status quo is hereby issued preserving the subsisting status over the suit land pending the hearing and determination of this suit. For clarity, the Plaintiff/applicant to continue having ownership and possession of the suit land which shall not be sold, charged, sub divided, transferred or disposed of to any other party pending the outcome of the suit. 6. Each party to bear their own costs of the Application. 7. It is so ordered. **Delivered** at **Kapsabet** this **29th day of July, 2026.** **HON. G M A ONGONDO** **JUDGE** **In the presence of;** 1. Ms Kioko instructed by Waigwa learned counsel for the plaintiff/applicant 2. Non Appearance for the respondents 3. Walter and Emma, court assistants