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ELCAllowedPetition (ELC) - application dated 16th November 2020· [2021] KEELC 3801 (KLR)

Miriam Jelagat Cheruiyo v Aitorney Genera & 6 others [2021] KEELC 3801 (KLR)

Environment and Land Court
9 March 2021
MOM. A. Odeny
3,607 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Eldoret preserved disputed land for a woman facing eviction, ruling damages could not fix losing her home pending trial.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Eldoret (M. A. Odeny, J) determines an application dated 16th November 2020 by the petitioner, Miriam Jelagat Cheruiyot, seeking interim injunctive and preservatory orders restraining the respondents from removing her from or developing the suit property LEMBUS/TORONGO/1015, with enforcement by the OCS Eldama Ravine Police Station. Interim orders had been granted at filing. The applicant challenged the constitutionality and process of the demarcation, allocation and titling during the Lembus/Torongo/Tugumoi Locational Forest Reserve settlement programme, contending that her portion was irregularly designated for a public school (Tiripkatoi Primary School, the 4th respondent) which already occupied a distinct parcel, LEMBUS/TORONGO/419, five kilometres away, and that the allocation process was marred by corruption, bias, discrimination and favouritism. She relied on Giella v Cassman Brown, Mrao v First American Bank and authorities on the overriding objective. The respondents, through Mr Odongo, denied a prima facie case, asserting the land was reserved as public utility and unavailable for allocation, and urged public interest in education. Applying the Giella principles, the court found the applicant had a prima facie case, would not be adequately compensated by damages if evicted, and that preserving the status quo served the interest of justice. The court ordered preservation of the suit land pending hearing and determination of the petition, with costs in the cause.

Key legal issues

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01

Prima facie case

Holding

The applicant established a prima facie case warranting preservation orders

Reasoning

Applying Giella v Cassman Brown as reaffirmed in Mrao v First American Bank, the court held it should not conduct a mini-trial. Given evidence of occupation by the applicant and communication over ownership of the suit land, the applicant demonstrated an apparently infringed right calling for explanation, sufficient at the interlocutory stage.

p. 5
02

Irreparable harm and balance of convenience

Holding

The applicant would not be adequately compensated by damages if evicted, so preservation orders were justified

Reasoning

Citing Pius Kipchirchir Kogo v Frank Kimeli Tenai on the meaning of irreparable injury and balance of convenience, the court reasoned that the applicant's eviction pending determination of her rights could not be remedied by damages, and that preserving the status quo served the overriding objective of doing justice between the parties.

p. 5

Legal principles established

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  • Injunctive orders are meant to preserve property and maintain the status quo pending determination of the suit
  • On an application for interlocutory injunction the court does not conduct a mini-trial but safeguards the substratum of the case

Court orders

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  1. 1.Orders of preservation of the suit land, LEMBUS/TORONGO/1015, pending the hearing and determination of the petition
  2. 2.Costs in the cause
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the petition; the ruling determines an interlocutory application for injunctive and preservatory orders

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, "Miriam Jelagat Cheruiyo v Aitorney Genera & 6 others [2021] KEELC 3801 (KLR)", Case Analysis (2021). Petition (ELC) - application dated 16th November 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3801/eng@2021-03-09

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