https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3996

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KITALE** **ELC CASE NO. E029 OF 2026** **DAVID KIPKORIR TARUS** **HOSEA KIBET TARUS** **STANLEY KIPTO KENEI TARUS** ***(Suing as Administrators of the estate of*** **ELIJAH KIPTARUS KENEI (Deceased)-----------------------PLAINTIFFS** **VERSUS** **EMILY TESOT** **RUTH MAIYO** ***(Sued as the Officials of* UMOJA WA** **WAMAWAKE KIPKEIKEI WOMEN GROUP)---------DEFENDANTS** **RULING** 1. The court, by an application dated **29/4/2026**, is asked to issue a temporary order of injunction to restrain the defendants through their officials, agents, and/or servants from trespassing or encroaching on **L.R.** **No. 6614/13**, or the portions occupied by the dependants of the deceased. The reasons are contained in the face of the application and in the supporting affidavit of Hosea Kibet Tarus, sworn on **27/4/2026**. 2. The deponent, as the administrator of the estate of the late Elijah Kiptarus Kenei, deposes that the dependants of the estate are on **L.R. No. 6614/13**, which they have developed in their capacity as the beneficiaries of the estate, with permanent and semi-permanent structures, where they live with families, whose size is approximately **1/8** of an acre with clear delineation on the ground. 3. It is deposed that on or about **1/4/2026**, the defendants illegally and wrongfully staked a claim on the area occupied by the said defendants, which the beneficiaries resisted as unjustified, and refused to move out of the portion, which could be detrimental to the estate of the deceased. 4. The plaintiffs depose that the defendants have no right to deal with the said land without the consent of the administrators of the estate, and unless restrained, the defendants are keen to unlawfully and illegally move into that suit land, which is an unjustified claim to it. 5. The plaintiffs have attached copies of the official search certificate and a grant of letters of administration as annexures marked **HKT-(1)** and **(2).** 6. The application is opposed through a replying affidavit sworn by Emily Tesot, the 1st defendant, who is one of the officials of the defendant organization, representing the 2nd and 3rd defendants. 7. It is deposed that a similar dispute relating to the suit land was conclusively heard and determined in **Kitale ELC No. 152 of 2007**, where the defendants had sued David Kiptarus Ruto, John Bett and Harun Kollum, as per attached decree marked **ET-(1),** which was appealed against in **Eldoret Civil Appeal No. 82 of 2020**, and dismissed on **27/2/2026** as per the attached judgment marked **ET-(2).** 8. The defendants depose that upon dismissal, the judgment debtors and those unlawfully on the suit land were given a **90-**day notice to vacate the land on **10/3/2026**, which lapsed on **10/6/2026**, as per annexure marked **ET-(3)** and the affidavit of service marked as **ET-(4).** 9. The defendants depose that the plaintiffs herein were all defence witnesses in the former suit and, being co-administrators or beneficiaries of the estate of the Later Elijah Kiptarus Kenei, are relitigating issues now already conclusively determined by a competent court, making the suit bad in law, *res* *judicata*; out to delay or obstruct a lawful decree from execution. 10. The defendants depose that the allegation that the plaintiffs are entitled to only an **1/8** share of the suit land is misleading, false, and intended to confuse the court. Further, the defendants depose that it is not true that the beneficiaries of the estate of the deceased are in occupation and/or have developments on the land; otherwise, the ones on the land are the very same unlawful purchasers: David K. Ruto, John Bett, and Harun Kollum, whom the court declared not to be innocent purchasers for value. 11. The defendants depose that the plaintiffs have withheld material facts from the court and have come to court with unclean hands to be entitled to the relief sought. 12. The defendants urge the court to find no *prima* *facie* case, that, with a probability of success having been established, the applicant intends to abuse or misuse the court process to frustrate and/or defeat the implementation and enforcement of a valid judgment and decree, and that it is in the interests of justice that the application dated **27/4/2026** be dismissed with costs. 13. To dispose of the application, parties were directed to file and serve written submissions by **19/5/2026**. The defendants rely on written submissions dated **8/5/2026**, which were filed and placed in the court file by the said date. 14. The plaintiffs have approached the court by a plaint dated **27/4/2026**. They seek to be declared the sole owners of **L.R. No. 6614/13** and for a permanent injunction restraining the defendants or their servants from interfering with the occupation of the suit land, or in any way extending the boundary of the land it occupies beyond **0.0461 Ha**. 15. It is pleaded that the late Elijah Kiptarus Kenei used to own **L.R. No. 6614/13** measuring **200.5 Ha**, out of which the defendants occupy **0.0461 Ha**, but are now staking a claim to **0.5 acres**, which they have threatened to move into. 16. Such acts of the defendants are what the plaintiffs describe as unjustified or intended encroachment, yet it has their permanent and semi-permanent structures or developments. The plaintiffs rely on a grant of letters of administration and a certificate of official search as annexures marked **ET-(1)** and **(2)**. 17. Other than a memorandum of appearance dated **8/5/2026**, the court has not come across a statement of defence filed raising issues of *res* *judicata*, attaching copies of pleadings in the former suit, or a list of documents, or witness statements, save for the judgment and decree. 18. The defendants have, in the written submissions, termed the application herein as falling short of meeting the ingredients of a temporary injunction as defined in ***Nguruman Ltd -vs- Jan Bonde Neilsen & Others [2014] eKLR,*** and ***Mrao Ltd -vs- First American Bank of (K) Ltd [2003] eKLR.*** 19. The defendants submit the suit as *res* *judicata*, as defined in ***Independent Electoral and Boundaries Commission -vs- Maina Kiai & Others [2017] eKLR:*** the court as lacking jurisdiction to entertain it as per ***Owners of the Motor Vessel Lillian “S” -vs- Caltex Oil (K) Ltd [1989] KLR 1***, and lastly; on the ground that the plaintiffs as guilty of non-disclosure of material facts and as one who deserve no equitable relief as held in ***Bahadurali Ebrahim Shamji -vs- Al. Noor Jamal & 2 Others Civil Appeal No. 210 of 1997.*** 20. A party seeking temporary orders of injunction has to meet the threshold set in ***Giella -vs- Cassman Brown & Co. Ltd [1973] EA 358***. 21. A prima facie case was described in ***Mrao Ltd -vs- First American Bank (K) Ltd*** *(supra)* as established where, through the material placed before the court, a right has been breached or threatened with breach to call for a rebuttal from the opposite side. 22. Irreparable loss or damage as per ***Nguruman Ltd -vs- Jan Bonde Neilsen,*** *(supra)* is one which cannot be quantified monetarily; it has to be real, apparent, imminent, and not based on mere fear, apprehension, or speculation. 23. Balance of convenience is where the plaintiff will suffer in the absence of an injunction is greater than the defendant, if the injunction is not issued, and the suit is ultimately dismissed. See ***Pius Kipchirchir Kogo -vs- Frank Kimeli Tenai [2018] eKLR.*** 24. The plaintiffs’ suit has been termed by the defendant as *res* *judicata* in view of **Kitale ELC No 152 of 2007**, which ended up at **Eldoret Civil Appeal No. 82 of 2020**. To prove *res judicata* as per ***Independent Electoral and Boundaries Commission & Others -vs- Maina Kiai & Others [2017] eKLR***, the burden is on the one alleging to show that there was a previous suit between the same parties, the title was the same, there was finality in determination of the issue, by a competent court and that the second suit is on the same issues between the same parties or parties litigating under the same title or umbrella and that the former court was capable of determining the same issues. 25. The doctrine of *res* *judicata* is meant to bring litigation to a close and to prevent parties from engaging in endless litigation over the same subject matter. In ***Henderson -vs- Henderson [1843] 3 Hare 100, 67 ER 313 (Ch),*** the court warned that parties should not be allowed to litigate matters in instalments. 26. In ***John Florence Maritime Service -vs- C.S. for Transport & Infrastructure & Others [2019] eKLR,*** the court warned that parties should not make a facelift in their pleadings to try to vex the other party with an attempt to seek a second bite of the cherry after they have lost in the previous suit. 27. The defendants term the plaintiffs herein as persons who participated in the earlier suit as witnesses but not as primary parties. The decree issued on **22/1/2020** indicates that what was decreed to the defendants was **0.5 acres** out of **L.R. No. 6614/13** as per the boundaries given by the late Elijah Kenei. 28. The plaintiffs are now saying that the defendants are threatening to enlarge their land beyond the **0.5 acres,** contrary to the decree of the court. 29. The defendants in the replying affidavit seem to be saying that they are targeting to evict the alleged innocent purchasers, as per the decree, who are not the plaintiffs. As indicated above, the defendants' replying affidavit has not attached the pleadings and judgment of this court, for the court to determine their claim as *res* *judicata*. 30. From the notice of eviction dated **3/3/2026**, read together with the decree, it is not clear if the defendants were decreed and mandated to evict any alleged illegal occupants on the suit land, which appears to be outside the **0.5 acres** decreed to them. 31. The plaintiffs claim is that the defendants are occupying **0.5 acres,** and yet are seeking to encroach on more land than they deserve. The notice dated **3/3/2026** is the basis upon which the defendants say that they are implementing and enforcing the decree. It does not comply fully with **Section 152A-I** of the Land Act. The court finds that the plaintiffs have established a *prima* *facie* case. 32. On irreparable loss or damage, there is undisputed evidence of imminent eviction or threatened eviction, or notice to vacate. The balance of convenience tilts in favor of maintaining the status quo until the suit is heard and determined. Such an order, however, does not stop the defendants from continuing with the occupation of the portion of **0.5 acres** decreed to them in the previous suit. The order shall last for one year only. 33. The plaintiffs are ordered to deposit **Kshs. 100,000/=** in court as security for costs within **14 days** from the date hereof; otherwise, the interim orders shall stand vacated. 34. Orders accordingly. **Ruling dated**, **signed and delivered,** via **Microsoft Teams/Open Court** at **Kitale** on this **29th** day of **June 2026.** **In the presence of:** Court Assistant - Dennis Mr. Karani Nyongesa for Chepkemoi for the defendant/respondent present Mr. Momanyi for plaintiff/applicant absent  **HON. C.K. NZILI** **JUDGE, ELC KITALE.**