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ELCDismissedELC Case (Eldoret) - Notice of motion dated 14th January, 2025· [2025] KEELC 2896 (KLR)

Kosgey v Too & 2 others (Environment & Land Case E004 of 2023) [2025] KEELC 2896 (KLR)

Environment and Land Court
27 March 2025
2,293 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Eldoret refused to stop landowners from using disputed land, finding the claimant's story inconsistent and unsupported by evidence.

What this practically means

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Executive summary

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By a Notice of motion dated 14th January 2025 under Order 40 rule 1 of the Civil Procedure Rules and sections 1A, 1B, 3, 3A and 63 of the Civil Procedure Act, the Plaintiff, Samuel Kosgei, sought interim injunctions restraining the Defendants from forceful entry, destruction or cultivation of land parcel Moiben/Moiben Block2 (Segero) 379, or in the alternative an order of status quo. He claimed he had occupied 2 acres since 2004, had acquired title by adverse possession, and that the Defendants, registered proprietors by transmission as administrators of the estate of Philip Kiptoo Ngososei alias Kiptoo Arap Ngososei, had irregularly obtained title and threatened violence. The Defendants, through a replying affidavit of the 2nd Respondent, opposed the application, asserting the beneficiaries were in possession, that the Plaintiff's photographs were inadmissible under section 106 of the Evidence Act, and that the application concealed related litigation by one Julius K. Korir, whose suit over the same land (Eldoret CMC ELC No. 147 of 2022) had been dismissed with an appeal (ELCA No. E020 of 2023) pending, as well as a pending Originating Summonses ELC E005/2023 by Thomas Sawe. Applying the Giella v Cassman Brown conditions, the court found no prima facie case, noting the Applicant was not candid about how he entered the land; that no danger of waste, damage or alienation was proved under Order 40 rule 1; that alleged threats and police reports were mere allegations; and that any damage was quantifiable in damages. Observing that the main suit was already fixed for hearing on 27th March 2025 and the application appeared intended to scuttle it, the court dismissed the motion with costs to the Respondents.

Key legal issues

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01

Whether the Applicant established a prima facie case with a probability of success

Holding

No - the Applicant's claim of adverse possession was contradicted by his own suggestion that he occupied a portion sold to Julius K. Korir, and he was not candid on how he entered the land

Reasoning

The court found the Applicant's occupation claim inconsistent: he claimed 2 acres by adverse possession while simultaneously suggesting possession of land sold to Julius K. Korir in 1996. Korir's own suit against the estate had been dismissed and his appeal pending. The Applicant did not explain his relationship, if any, with Korir or how he entered the land.

p. 4
02

Whether the suit property is in danger of being wasted, damaged or alienated under Order 40 Rule 1

Holding

No - apart from the registration through transmission, there was no evidence of infringement of the Applicant's rights; allegations of threatened violence and breach of peace were mere allegations unsupported by evidence

Reasoning

The Applicant merely asserted that the cultivation season had commenced and there was danger of a breach of peace, and that the matter had been reported to Police, but adduced no evidence. The court held these were mere allegations insufficient to satisfy the statutory threshold for a temporary injunction.

p. 4
03

Whether the Applicant would suffer irreparable injury not compensable by damages

Holding

No - any damage suffered could be quantified in damages, and the Applicant could still be registered as owner of the 2 acres if he proves adverse possession at trial

Reasoning

The court reasoned that the relief sought was interim and the Applicant's claimed adverse possession could be fully vindicated at the hearing of the main suit; any interim damage was quantifiable in damages. The main suit was already fixed for hearing on 27th March, 2025.

p. 4
04

Whether the application was an abuse of process meant to scuttle the hearing of the suit

Holding

The court observed the suit had been fixed for hearing before the application was filed and the application appeared intended to delay the hearing

Reasoning

The Respondents contended the application was a disguise to start utilizing the land and intimidate the beneficiaries. The court noted the matter had been in court on 5th December 2024 and hearing was fixed for 27th March 2025, and found the application appeared calculated to scuttle that hearing.

p. 4

Legal principles established

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  • Temporary injunctions are equitable reliefs granted at the court's discretion under the Giella v Cassman Brown conditions; the applicant must show a prima facie case with probability of success, irreparable injury not compensable by damages, and failing which the balance of convenience
  • An applicant for a temporary injunction under Order 40 Rule 1 must prove that the property in dispute is in danger of being wasted, damaged or alienated

Court orders

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  1. 1.The Notice of motion dated 14th January, 2025 is dismissed with costs to the Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 rule 1
  • Civil Procedure Actsections 1A, 1B, 3, 3A
  • Civil Procedure Actsection 63
  • Evidence Actsection 106

Cases cited (1)

  • Giella v Cassman Brown & Co. Ltd
    [1973] EA 358
Jurisdiction invoked
Order 40 rule 1 of the Civil Procedure Rules, sections 1A, 1B, 3, 3A and 63 of the Civil Procedure Act

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, "Kosgey v Too & 2 others (Environment & Land Case E004 of 2023) [2025] KEELC 2896 (KLR)", Case Analysis (2025). ELC Case (Eldoret) - Notice of motion dated 14th January, 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2896/eng@2025-03-27

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