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ELCAllowedNot stated in the judgment as provided· [2024] KEELC 178 (KLR)

Biwott v Kibet & 4 others (Environment & Land Case 43 of 2023) [2024] KEELC 178 (KLR)

Environment and Land Court
25 January 2024
1,070 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 Kenyan land buyer in possession and developed property won an injunction blocking sale or subdivision until his case is fully heard.

What this practically means

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Executive summary

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The plaintiff, Lojomon K. Biwott, sued by plaint alleging that he purchased fourteen acres and six plots excised from land parcel KAKAMOR/KIPROTA/200, nine acres and two plots from the 1st defendant Willy Kipkorir Kibet and five acres and four plots from the deceased Willy Kipkorir Kibet, sons and heirs of the late Kibet Arap Chemirmir. He took possession, fenced and developed the land. A succession cause over the estate was pending at Eldama Ravine but the grant had not been confirmed and the plaintiff's interest was not included, and the defendants had interfered with his possession and threatened eviction. By a Notice of Motion he sought an injunction restraining subdivision, transfer, sale or other disposal of the parcel and interference with his quiet enjoyment of the portions marked A, B, C and Plots 1 to 6. The respondents, through Vincent Kipngetich Ronah, argued the grant was unconfirmed, the sellers lacked capacity to sell deceased-registered land, and the co-defendants were not privy to the sale agreements. The court framed the standard Giella questions and found a prima facie case with likelihood of success, uncontroverted development evidencing irreparable loss, and the balance of convenience favouring the plaintiff in possession. The application was allowed with an interim injunction until hearing and determination of the suit; costs were awarded to be in the suit. This was an interlocutory ruling, not a final determination of the suit.

Key legal issues

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01

Prima facie case with likelihood of success

Holding

Established - the plaintiff proved possession of the land given by the 1st defendant and the late Willy Kipkorir Kibet, beneficiaries of the estate

Reasoning

The court found the plaintiff took possession from the 1st defendant and the deceased's son, both beneficiaries of the estate of Kibet Arap Chemirmir. The grant had not been confirmed, so the suit was not time barred, and the plaint raised triable issues indicating likelihood of success.

p. 3
02

Irreparable loss

Holding

Established - allegations that the plots are fully developed were not controverted

Reasoning

The plaintiff attached photographs showing a chain-link fence, a permanent house and a store. Since the allegations of development were uncontroverted, the court found the plaintiff likely to suffer irreparable loss if the injunction were withheld, damages being inadequate at this stage.

p. 3
03

Balance of convenience

Holding

Tilts in favour of granting the injunction because the plaintiff, not the defendants, is in possession and has developed the land

Reasoning

The plaintiff had been in possession and had developed the land since purchase. The defendants are not in possession, so they would suffer little inconvenience if the injunction were granted and they later succeeded, and they could be compensated with costs.

p. 3

Legal principles established

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  • A limitation defence fails where the grant of letters of administration intestate has not been confirmed
  • A plaintiff in possession of land purchased from beneficiaries of an unconfirmed estate raises triable issues sufficient for a prima facie case

Court orders

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  1. 1.Order of injunction restraining the defendants from subdividing, transferring, selling or in any way disposing of all that parcel of land known as Kakamor/Kiprota.200
  2. 2.Injunction restraining the defendants from interfering with the plaintiff's quiet enjoyment, use and possession of the portions of land marked A-5 acres, B-5 acres, C-5 acres and Plots 1 to 6 (50ft X 100ft each)
  3. 3.Interim injunction to remain in force until hearing and determination of the suit
  4. 4.Costs of the application to be in the suit
Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over a suit relating to land parcel KAKAMOR/KIPROTA/200

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, "Biwott v Kibet & 4 others (Environment & Land Case 43 of 2023) [2024] KEELC 178 (KLR)", Case Analysis (2024). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/178/eng@2024-01-25

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