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ELCDismissedNotice of motion dated 27th June, 2019 filed with suit of even date (suit number not stated in judgment)· [2020] KEELC 1861 (KLR)

Reuben Cheruiyot Cheborge (suing as the Administrator of the Estate of Zakayo Maina v Peter Kipyegon Ngetich [2020] KEELC 1861 (KLR)

Environment and Land Court
30 June 2020
1,081 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A limited court appointment to sue on behalf of a deceased landowner is not enough to win an urgent order stopping someone from using Kenyan family land.

What this practically means

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Executive summary

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The plaintiff, Reuben Cheruiyot, sued the defendant, Peter Kipyegon Ngeticho, for trespass onto land parcel NO KERICHO/KIPSONOI/46, registered in the name of the late Zakayo Maina alias Kipsoi A. Maina, whose estate the plaintiff represents under a grant ad litem. By a notice of motion dated 27th June, 2019, brought under Order 40 and Order 51 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, the plaintiff sought an interlocutory injunction restraining the defendant from entering, occupying, cultivating or dealing with the suit land pending the hearing and determination of the suit, plus costs. The defendant opposed the application through a replying affidavit, deposing that he occupied only one acre of the suit land as caretaker for Hellen C. Cheborgei, a beneficiary awarded one acre by an elders' meeting in 2017, at which the plaintiff was present, and whose minutes listed the plaintiff as No. 23. Hellen's written statement on record supported the defendant's account. Both sides filed written submissions, the plaintiff relying on the Giela v Cassman Brown test for interlocutory injunctions. The court found the defendant more convincing, held that a grant ad litem does not establish a prima facie case and that normal use of the land does not cause irreparable loss, noting the plaintiff's silence on his relationship with Hellen and the 2017 resolution. The application was dismissed with costs on 30th June, 2020.

Key legal issues

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01

Whether a prima facie case with a probability of success was established

Holding

No prima facie case was established merely by holding a grant ad litem; the applicant failed to address the respondent's claim of permissive occupation through Hellen C. Cheborgei, a beneficiary awarded one acre by elders

Reasoning

The court found the respondent's explanation credible, supported by minutes of the 2017 elders' meeting in which the applicant appears as No. 23, and by Hellen's written statement filed on 10th July, 2019. The applicant passed over these matters in silence and failed to clarify his relationship with Hellen or her alleged entitlement, so the Giela v Cassman Brown threshold was not met.

p. 2
02

Whether the applicant demonstrated irreparable loss that damages cannot adequately compensate

Holding

No irreparable loss was demonstrated; the respondent's normal use of the land would not cause loss beyond the reach of damages

Reasoning

The court reasoned that occupation and ordinary agricultural use of land are compensable in damages, and that the applicant's assertion of waste and soil depletion was not persuasive in light of the respondent's permissive occupation of only one acre awarded to Hellen by the elders.

p. 2

Legal principles established

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  • A grant ad litem issued only to enable filing of a suit does not make the holder a full legal representative of the estate and does not by itself establish a prima facie case

Court orders

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  1. 1.The application (notice of motion dated 27th June, 2019) is dismissed
  2. 2.Costs of the application to the defendant/respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rules 1, 2(1), 4(1)
  • Civil Procedure RulesOrder 51 rule 1
  • Civil Procedure Act (Cap 21)Sections 1A(1)(2), 1B and 3A

Cases cited (1)

  • GIELA VS CASSMAN BROWN & CO. LTD
    (1973) EA 358
Jurisdiction invoked
Order 40 rules 1, 2(1), 4(1) and Order 51 rule 1 of the Civil Procedure Rules; Sections 1A(1)(2), 1B and 3A of the Civil Procedure Act (Cap 21)

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, "Reuben Cheruiyot Cheborge (suing as the Administrator of the Estate of Zakayo Maina v Peter Kipyegon Ngetich [2020] KEELC 1861 (KLR)", Case Analysis (2020). Notice of motion dated 27th June, 2019 filed with suit of even date (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1861/eng@2020-06-30

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