https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4956

**** **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT ITEN** **ELCLOS EOO2 OF 2026** **WINNY JEPKEMOI TIROP ..……………………....…..… 1ST APPLICANT** **JULIUS KIMUTAI TIROP …………………………………. 2ND APPLICANT** **VERSUS** **RUTH CHEMUTAI CHEPYATOR .………………...……1ST RESPONDENT** **DAVID KIPROTICH TIROP ………………………..……2ND RESPONDENT** **PASCA JERONO CHERUIYOT …………………………3RD RESPONDENT** **HODIA JERUTO KEINO ………………………………… 4TH RESPONDENT** **ERNEST KIPLAGAT SUTER ……………….………….. 5TH RESPONDENT** **RULING** 1. **WINNY JEPKEMOI TIROP** and **JULIUS KIMUTAI TIROP** (the 1st and 2nd Applicants respectively) have filed an Originating Summons dated 2nd April 2026 in which they seek orders that they have acquired the land parcels **NO. IRONG/SINGORE/16, 17, 18, 19** and **20** (the suit land) by way of adverse possession. 2. **RUTH CHEMUTAI CHEPYATOR, DAVID KIPROTICH TIROP, PASCA JERONO CHERUIYOT, HODIA JERUTO KEINO** and **ERNEST KIPLAGAT SUTER** (the 1st to 5th Respondents respectively) are yet to file a response to the Summons. 3. Simultaneously with the Originating Summons, the Applicants moved to court vide their Notice of Motion dated 9th April 2026 and filed under certificate of urgency. They seek the following orders: 4. **Spent** 5. **Spent** 6. **That there be an order of status quo restraining and/or baring the Respondents, their agents, employees, assignees or any person acting through them from trespassing into, selling, leasing, charging, ploughing, erecting any structures or dealing in any way with the land parcel NO. IRONG/SINGORE/16, 17, 18, 19 and 20 pending the hearing and determination of this suit.** 7. **That there be an order of status quo in respect of the land parcel NO. IRONG/SINGORE/16, 17, 18, 19 and 20 be maintained pending the hearing and determination of this suit.** 8. **That costs of the application be provided for.** 9. The Motion is anchored on the provisions of Sections 1A and 1B of the Civil Procedure Act and Order 40 Rule 1 and 2 of the Civil Procedure Rules. It is also based on the grounds set out therein and supported by the affidavit of the 1st Applicant. 10. The thrust of the Motion is that the original land parcel **NO. IRONG/SINGORE/12** belonged to the Applicants father one **TIROP arap MAIYO aka TIROP A. MAIYO** who passed away in 2010 and was buried on the said land which has since been sub-divided to create the suit land. They have filed **ITEN SUCCESSION CAUSE NO. E032 OF 2026** in respect of the Estate of their late father and which is still pending in court. That their late mother **KIMOI JEMELI TIROP** moved out of the suit land following differences with their father and took all of them away to their maternal home together with their other siblings being **JAMES KIPCHUMBA TIROP, FLOMENA ALBERT, DINAH JEPKOECH RONO, HELLEN JELAGAT TIROP, MARY JERUTO TIROP and DAVID KIPROTICH TIROP**. However, when their late mother passed away, she was buried on the suit land. 11. In 1997 following the demise of their mother, the Applicants moved back to the suit land and have continued to live thereon peacefully. 12. The Applicants have since discovered that the suit land has been transferred to the Respondents yet succession proceedings are not complete. The Respondents are holding titles to the suit land yet there is no evidence that they paid for them or even obtained the consent of the Land Control Board. The Respondents’ titles were therefore obtained fraudulently and even the 2nd Respondent was charged and convicted in **ITEN SRM COURT Criminal Case No. E404 of 2023** with the offence of fraudulently procuring registration of land documents. If the Respondents had any claim over the suit land, they would have protested when the Applicants buried their father and mother therein. 13. Annexed to the Motion are the following documents. 14. **Copy of death certificate of TIROP ARAP MAIYO.** 15. **Photographs of grave of TIROP ARAP MAIYO.** 16. **Copy of Application filed in ITEN COURT SUCCESSION CAUSE NO. E032 of 2026.** 17. **Copy of a letter dated 4th July 2023 and addressed to the 1st Respondent by SONGOK & COMPANY ADVOCATES.** 18. **Copy of a letter dated 17th July 2023 addressed to SONGOK & COMPANY ADVOCATES from J. K. KIPLAGAT & COMPANY ADVOCATES.** 19. **Copy of a letter dated 31st July, 2023 from J. K. KIPLAGAT & COMPANY ADVOCATES addressed to SONGOK & COMPANY ADVOCATES.** 20. **Copy of a letter dated 19th September 2023 from SONGOK & CO. ADVOCATES addressed to J. K. KIPLAGAT ADVOCATES.** 21. **Copy of a letter dated 18th January 2024 addressed to the 4th Respondent from SONGOK & COMPANY ADVOCATES.** 22. **Copies from the Green Cards for the land parcels NO. IRONG/SINGORE 12, 16, 17, 18, 19 and 20.** 23. **Charge sheet and proceedings in ITEN COURT CRIMINAL CASE NO. E404 of 2023 R. V. DAVID KIPROTICH TIROP. The accused was convicted for the offence of conspiracy to commit a felony and fraudulently procuring registration of certificate of ownership of land. He was placed on 3 years’ probation.** 24. The Motion is opposed and only the 4th Respondent has filed a replying affidavit dated 11th May 2026 in which she has deponed, inter alia that she is the registered proprietor of the land parcel **NO. IRONG/SINGORE/19** which she purchased from **JOSPHAT KIPKOECH TIROP**. That the said parcel of land was sub-division of the original land parcel **NO. IRON/SINGORE/12** which was done during the life time of **TIROP A MAIYO**. That it is the Applicants who have trespassed onto her land, ploughed it and made a grave to create the narrative which has been overtaken by events. His land therefore does not fall under the estate of the late **TIROP A MAIYO** as she followed due process. The applicants have come to equity without clean hands and have misrepresented the facts. No prima facie case has been established and the orders sought should not be granted. 25. The following documents are annexed to the 4th Respondents replying affidavit. 26. **Copy of transfer form for IRONG/SINGORE/19 to JOSPHAT KIPROTICH Arap MAIYO from TIROP Arap MAIYO.** 27. **Copy of Green card for parcel NO. IRONG/SINGORE/19.** 28. **Copy of transfer form for IRONG/SINGORE/19 from JOSPHAT KIPKOECH TIROP to HODIA JERUTO KEINO.** 29. **Copy of letter of consent** 30. **Copy of Application for consent of the Land Control Board.** 31. **Copy of Mutation Form.** 32. **Copy of letter of Consent.** 33. The Motion has been canvassed by way of written submissions. The same have been filed by **MR. SONGOK instructed by the firm of SONGOK & COMPANY ADVOCATES** for the Applicant and by **MR. CHERUIYOT J.** instructed by the firm of **CHERUIYOT J. & COMPANY ADVOCATES** for the 4th Respondent. The other Respondents did not file any response to the Motion. 34. I have considered the Motion, the rival affidavits and annexures thereto as well as the submissions by counsel. 35. An application such as this one has to be canvassed in accordance with the guidelines set out in the case of **GIELLA V. CASSMAN BROWN & COMPANY LTD 1973 EA 358.** There are that the Applicant must show a prima facie case with a probability of success, that he is likely to suffer injury which cannot be adequately compensated by an award of costs and if this court is in doubt, it will determine the application on a balance of probability. 36. A prima facie case, as was held in the case of **MRAO V. FIRST AMERICAN BANK OF KENYA LTD & OTHERS 2003 KLR 125,** **“ ……… is a case which on the material presented to a court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.”** 1. And as was held in **FILMS ROVER INTERNATIONAL LTD V. CANNON FILM SALE LTD 1986 3 ALL ER 772;** **“ A fundamental principle is that a court should take whichever course appear to carry the lower risk of injustice if it should turn at to have been wrong.”** 1. Finally, in the case of **NGURUMAN LTD V. JAN BONDE NIELSEN & 2 OTHERS C. A CIVIL APPEAL NO. 77 OF 2012 [2014 KECA 606 KLR),** the court adopted the definition in **MRAO V. FIRST AMERICAN BANK OF KENYA** (Supra), and went on to add: “ **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 of 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 balance or, as otherwise put, on a preponderance of probabilities. This means no more than the court takes the view that on the face of it, the applicant’s case is more likely than not to ultimately succeed.”** Emphasis mine. 1. It is common knowledge that the original land parcel **NO. IRONG/SINGORE/12** and which has since been sub-divided to give rise to the suit land was registered in the name of **TIROP Arap MAIYO** who is the deceased father to the Applicants and the 2nd Respondent. And although the 4th Respondent has averred in paragraph 4 of her replying affidavit that she purchased the land parcel **NO. IRONG/SINGORE/19** from one **JOSPHAT KIPKOECH TIROP** and that the sale agreement was among the documents annexed to the replying affidavit, the court did not see any such sale agreement among those annexures. Then there is the evidence that the original land parcel **NO. IRONG/SINGORE/12** was matrimonial property on which the Applicants lived with their parents before their mother left only to return later and both she and **TIROP Arap MAIYO** were later buried therein. There is also the charge sheet in **ITEN COURT CRIMINAL CASE NO. E404 OF 2023** in which **DAVID KIPROTICH TIROP** was charged and convicted for the offence of fraudulently procuring registration of land documents. All that together with the fact that the Applicants live on the suit land establishes a prima facie case. 2. The Applicants parents are buried on the suit land. If the same is sold to 3rd parties, those graves may be dissipated. That would amount to irreparable injury which cannot adequately be compensated by an award of damages. 3. The balance of convenience tilts towards granting the prayers sought. 4. The upshot of all the above is that having considered the Notice of Motion dated 9th April 2026, I make the following dispositive orders: 5. **The Motion is allowed as prayed** 6. **Costs are in the cause.** **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**