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ELCAllowedNot stated in excerpt· [2018] KEELC 4474 (KLR)

Zipporah Jeptarus Chepkwony v Philip Carlos Kemboi [2018] KEELC 4474 (KLR)

Environment and Land Court
26 January 2018
AOAntony Ombwayo
727 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Eldoret Environment and Land Court paused a land dispute until a related succession case is decided, letting the farmer keep using the land.

What this practically means

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Executive summary

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This is a ruling on the defendant/applicant's notice of motion in a land suit before the Environment and Land Court at Eldoret. The defendant, Philip Carlos Kemboi, sought restoration of the status quo ante 17 November 2017, vacation of interim injunctive orders issued on 17 November 2017 restraining him from conducting activities on the suit land, and a stay of the proceedings pending determination of Eldoret High Court Probate & Administration No. 343 of 2009, in the matter of the Estate of Kengu Arap Chepkwony. He argued that the plaintiff had concealed from the court that the suit land was subject to the succession proceedings, rendering the suit defective and the injunction untenable, and that the orders prevented him from tending sugarcane he had planted. The plaintiff, Zipporah Jeptarus Chepkwony, claimed beneficial ownership, relying on a certificate of confirmation of grant issued on 14 February 2011 to her and a co-wife, and asserted the defendant had been allotted a carved-out parcel, Nandi/Kipkaren/151, and was not in possession. The court found the defendant's affidavit clear that he had planted sugarcane needing care until harvesting, while the plaintiff's affidavit was evasive, alleging only recent trespass; plaintiff's counsel admitted the defendant ploughed and planted seasonally. Concluding that the succession cause remained pending and unconcluded, the judge vacated the orders of 17 November 2017, stayed these proceedings pending determination of the succession cause, and directed that the status quo ante 17.11.2017 be maintained with the defendant continuing to utilize the land. Costs were made costs in the cause. Judgment delivered on 26 January 2018 by Antony Ombwayo, Judge.

Key legal issues

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01

Status quo ante and vacation of the injunction of 17.11.2017

Holding

The injunction was vacated and status quo ante 17.11.2017 restored, the defendant to continue utilizing the land.

Reasoning

The court compared the defendant's affidavit, which clearly stated he had planted sugarcane requiring care until harvest, with the plaintiff's evasive affidavit alleging only recent trespass. Counsel for the plaintiff admitted the defendant came to plough and plant seasonally. The court inferred the defendant was in occupation, and held it prudent to preserve the status quo since the Succession Cause remained unconcluded.

p. 3
02

Stay of proceedings pending the succession cause

Holding

Proceedings stayed pending determination of Eldoret High Court P&A No. 343 of 2009.

Reasoning

The suit land is subject to succession proceedings concerning the Estate of Kengu Arap Chepkwony, which have not been concluded. The succession cause is capable of determining the parties' interests in the land, so the court found it prudent to stay this suit to avoid rendering the succession cause nugatory or academic.

p. 3

Legal principles established

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  • Where a party is evasive about the state of occupation of suit land, the court may draw the inference favouring the party who gives a clear account.
  • Pending conclusion of succession proceedings over the estate from which suit land derives, it is prudent to maintain the status quo.

Court orders

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  1. 1.The orders issued on 17.11.2017 are vacated
  2. 2.Stay of proceedings pending determination of Eldoret High Court P&A No. 343 of 2009 in the matter of the Estate of Kengu Arap Chepkwony
  3. 3.Status quo ante 17.11.2017 to be maintained, the defendant to continue utilizing the land pending determination of the Succession Cause
  4. 4.Costs in the cause
Jurisdiction invoked
Original civil jurisdiction over the suit land; interlocutory application by the defendant (statutory basis not stated in the judgment).

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Zipporah Jeptarus Chepkwony v Philip Carlos Kemboi [2018] KEELC 4474 (KLR)", Case Analysis (2018). Not stated in excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4474/eng@2018-01-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.