https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2933

Chepkiyeng v Cherubet & 2 others (Sued as the legal representatives of the Estate of Kipruto Cherubet alias Kipruto arap Cherubet - Deceased) (Land Originating Summons E011 of 2026) [2026] KEELC 2933 (KLR) (14 May 2026) (Ruling) Neutral citation: [2026] KEELC 2933 (KLR) Republic of Kenya In the Environment and Land Court at Eldoret Land Originating Summons E011 of 2026 CK Yano, J May 14, 2026 Between Willy Kibet Chepkiyeng Applicant and Christopher Kemboi Cherubet, Stephen Mutai, Dismas Mutai (Sued as the legal representatives of the Estate of Kipruto Cherubet alias Kipruto arap Cherubet - Deceased) Respondent Ruling 1.Vide a Notice of Motion dated 26th February, 2026 brought under the provisions of Article 40 and 23(2)(b) of the Constitution, Sections 25 and 26 of the Land Registration Act and Sections 107 and 110 of the Land Act and Order 40 of the Civil Procedure Rules, the Applicant sought the following orders:-1.Spent2.Spent3.That pending the hearing and determination of this application and suit, the respondents by themselves, their agents and/or servants be restrained by an order of temporary injunction from invading, encroaching, trespassing, subdividing, alienating or dealing in any manner with 3 acres from that parcel of land known as LR. No. 9507, the suit land herein.4.That this honourable court do issue an inhibition stopping and/or restraining further transactions and subdivisions over LR. No. 9507 pending the hearing of this application inter-parties and the main suit.5.That the costs of this application be borne by the respondents. 2.The application is based on the grounds that the applicant has been in actual, physical and peaceful possession of 3 acres of the suit land since 2004 with is family wherein he had substantively developed it. That the applicant is the legitimate owner of the suit property by operation of Limitation of Actions Act. That the respondents without any colour of right whatsoever have threatened to violently and forcefully invade, trespass and encroach into the suit land and commence fresh subdivision and evict the applicant and change the status on the ground during the pendency of these proceedings. That the applicant stands to suffer irreparable and substantial loss that cannot be adequately compensated by damages since the respondents’ actions shall deprive the applicant the right to utilize his parcel of land. 3.The application is supported by the affidavit of Willy Kibet Chepkiyeng, the applicant herein, sworn on 26th February, 2026 wherein he reiterates the above grounds and has annexed copies of sale agreement and photographs demonstrating the developments in the suit land, an official search and rectified certificate of confirmation of grant. 4.The court directed the applicant to serve the application for hearing inter-parties on 13th April, 2026. On that date, Mr. Kibii counsel for the applicant was present and there was no representation on the part of the respondents. Mr. Kibii informed the court that the respondents were duly served and had filed an affidavit of service dated 10.3.2026 indicating that the respondents were served on 5.3.2026. The applicant’s counsel relied on the grounds in the application and the supporting affidavit. Ruling was then reserved for 14.5.2026. 5.In the course of writing the ruling and upon perusal of the CTS, I note that the respondents through M/s Anassi Momanyi filed an affidavit in opposition of the application sworn by Christopher Kemboi Cherubet on 16.3.2026. He deponed that the application lacks in merit and substance. That the conditions precedent for the application to succeed do not obtain since the applicant has not established a prima facie case which stands a chance of succeeding and has not set out the kind of harm, if any, he stands to sustain if the orders he seeks are not granted, adding that the applicant stands to suffer no harm. 6.The deponent averred that the balance of convenience tilts in his favour as the applicant is not in possession of the suit land, which he termed non-existent. That the applicant is a man of violent character and has used violence to occupy a different parcel of land and always threatened the rightful beneficiaries with violence and death. 7.The respondent deponed that the applicant has not been in peaceful, continuous and exclusive possession of the none existent parcel of land, and issuing orders on the same is an exercise in futility, adding that courts cannot issue orders in vain. It is averred that the application is unstainable, incompetent and an abuse of the process of court. 8.The respondents also filed submissions dated 20.4.2026. Analysis and Determination: 9.I have considered the application, the supporting affidavit and the affidavit in opposition. The main issue for determination is whether the applicant is deserving of the order of temporary injunction and inhibition pending the hearing and determination of this suit. 10.The law regarding grant of interlocutory injunction is Order 40 Rule 1 of the Civil Procedure Rules which provides as follows: -“Where in any suit it is proved by affidavit or otherwise:a.That any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit or wrongfully sold in execution of a decree;b.That the defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further order. 11.Order 40 therefore gives the court discretion to issue orders which are in the nature of an injunction restraining dealings on property pending determination of a suit or until further orders by the court. The conditions for the grant of interim injunctions are well known having been settled in the now famous case of Giella vs. Cassman Brown 7 Co. Ltd (1973) E.A 358 where it was held that:-“The conditions for the grant of an interlocutory injunction are well settled in East Africa. First, an applicant must show a prima facie case with a probability of success. Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury, which would not adequately be compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.” 12.The first element to be established by the applicant herein is that he has a prima facie case, which the Court of Appeal in Mrao Ltd vs. First American Bank of Kenya Ltd (2003) eKLR construed as follows:-“… in Civil cases, it is a case in which, on the material presented to the court a tribunal properly directing itself will conclude that there exists a legal right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.” 13.In the instant case, it is the applicant’s contention that he has acquired the suit land measuring 3 acres by way of adverse possession having been in actual, physical and peaceful possession with his family since the year 2004, and that he has substantially developed it. That the respondents have threatened to violently and forcefully invade the suit land and evict the applicant therefrom and therefore change the status of the land on the ground during the pendency of these proceedings. The applicant has exhibited a sale agreement and photographs in support of his alleged occupation, possession and developments. 14.On their part, the respondents have merely denied the alleged possession, adding that the suit land is non-existent. 15.I am well aware that at this stage, the court is not required to determine the merits or demerits of the parties claims on the contradictory affidavit evidence. The court is only required to determine whether the applicant has established a prima facie case. That being the case, from the totality of the material before this court at this stage, I am satisfied that the applicant has established that he has a prima facie case with a probability of success. 16.Secondly, the applicant is required to show that he stands to suffer irreparable loss if the order of injunction is not issued. The applicant alleges that he will suffer irreparable loss which cannot be compensated by way of damages if the respondents invade the land and forcefully evict him and his family from a place they have lived since 2004. That if the respondents go ahead and subdivide the land, the status on the ground will change before determination of the suit. 17.In my opinion, the applicant has satisfactorily set out the harm he stands to suffer if the injunction is not issued. No doubt, if the applicant is evicted, he will suffer irreparably, and the suit herein may be rendered nugatory. I am therefore satisfied that the applicant has surmounted the second condition. 18.Finally, where the court is in doubt as to whether to issue the injunction, it is required to determine the issue on a balance of convenience. In Amir Suleiman vs. Amboseli Resort Limited (2004) eKLR, Ojwang, Ag. J. (as he then was), defined what the term balance of convenience means by stating that:-“The court in responding to prayers for interlocutory injunctive reliefs, should always opt for the lower rather than the higher risk of injustice.” 19.In other words, the applicant must show that the comparative mischief which is likely to arise from withholding the injunction will be greater than that which is likely to arise from granting it. (see Pius Kipchirchir Kogo vs. Frank Kimeli Tenai (2018) eKLR. 20.I have no doubt that the balance of convenience tilts in favour of the applicant so that his claim of adverse possession may be heard and determined. There is therefore need to preserve the subsisting status of the suit property so as to prevent the court from giving orders in vain upon hearing and determining the suit. 21.The sum total of the foregoing deliberations is that the applicant has met the threshold for grant of the orders of temporary injunction and inhibition. Consequently, the Notice of motion dated 26th February, 2026 is allowed in the following terms:-a.That pending the hearing and determination of the suit, the respondents by themselves, their agents/or servants are restrained by an order of temporary injunction from invading, encroaching, alienating or dealing in any manner whatsoever with 3 acres of that parcel of land known as LR. No. 9507.b.That an inhibition is hereby issued stopping and/or restraining further transactions and subdivision over the portion measuring 3 acres in L.R No. 9507 pending the hearing and determination of this suit.c.Costs of this application will be in the cause. 22.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. Wainaina for Respondent.Mr. Kibii fro Applicant.Court Assistant - Laban.