Kosgey v Too & 2 others (Environment & Land Case E004 of 2023) [2025] KEELC 2896 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Applicant established a prima facie case with a probability of success
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
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.
Whether the suit property is in danger of being wasted, damaged or alienated under Order 40 Rule 1
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
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.
Whether the Applicant would suffer irreparable injury not compensable by damages
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
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.
Whether the application was an abuse of process meant to scuttle the hearing of the suit
The court observed the suit had been fixed for hearing before the application was filed and the application appeared intended to delay the hearing
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.
Legal principles established
#- 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
#- 1.The Notice of motion dated 14th January, 2025 is dismissed with costs to the Respondents
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.