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ELCDismissedNot stated in the judgment· [2025] KEELC 3054 (KLR)

Korir (Suing as Personal Representative of the Estate of Abraham Kipkorir Tarus) v Kogo (Sued as Personal Representative of the Estate of the Late Nathan Kimaiyo Tarus) (Environment & Land Case E065 of 2024) [2025] KEELC 3054 (KLR)

Environment and Land Court
3 April 2025
2,701 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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An Eldoret court dismissed a land injunction even though nobody opposed it, because the applicant offered no proof of ownership or harm.

What this practically means

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Executive summary

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The Plaintiff/Applicant moved the Environment and Land Court at Eldoret by Notice of Motion dated 12th November 2024, under Sections 1A and 3A of the Civil Procedure Act and Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules, seeking a temporary injunction restraining the Defendant/Respondent from alienating, trespassing on, evicting, or interfering with beneficiaries of the late Abraham Tarus in occupation or claimed entitlement to 200 acres of land parcel No. Turbo West/Osongorai Block 3 (Tapsagoi)/36. The applicant contended that the late Nathan Kimaiyo Tarus, the registered owner, had agreed with his son, the late Abraham Kipkorir Tarus, that the latter would fund part of the purchase price from the Settlement Fund Trustee and take a 300-acre share, creating a trust; of that share, 100 acres were registered in Abraham's name, a further 100 acres were given but never transferred, and the remaining 100 acres were never given. The application was unopposed - the respondent filed neither response nor submissions despite service. C. K. Yano, Judge, nonetheless determined it on merit, applying the sequential Giella v Cassman Brown test. The court found no prima facie case: no schedule of properties or succession cause number proved the alleged inclusion of the land in the estate of Nathan Kimaiyo Tarus, and no evidence supported the allegations of destruction and wastage. Irreparable injury was not demonstrated, and the balance of convenience failed because the applicant's ownership claims were contradictory and unverified by title documents, and the extent of the portion claimed was unascertainable. The application was dismissed with no orders as to costs, since the respondent had incurred no expense in defending it.

Key legal issues

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01

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

Holding

No - no proof was produced of the inclusion of the suit land in a succession cause, and no evidence of destruction or wastage was adduced

Reasoning

Although the application was unopposed, the court held that an applicant must still prove his case whether or not the evidence is challenged. The applicant alleged the whole parcel was listed in a deceased's estate and that the defendant was wasting property, but produced no schedule of properties, succession cause number, or photographic or other evidence of destruction. The court accordingly found the prima facie case limb unsatisfied.

p. 4
02

Whether the applicant demonstrated irreparable injury not compensable by damages

Holding

No - the applicant merely narrated the genesis of the claim and occupation without demonstrating the nature and extent of the injury

Reasoning

Relying on Pius Kipchirchir Kogo v Frank Kimeli Tenai and Nguruman Limited v Jan Bonde Nielsen, the court restated that irreparable injury is one that cannot be adequately compensated in damages. Beyond asserting occupation of the 100 acres by Abraham Tarus's sons, the applicant did not show the injury likely to be suffered, nor could the court ascertain the status of the parcel or whether the alleged wastage was compensable in damages.

p. 5
03

Whether the balance of convenience tilts in favour of the applicant

Holding

No - the applicant's ownership claim was contradictory and unproved, and the extent of his entitlement was unascertainable

Reasoning

The applicant claimed to be registered proprietor while also stating the land was registered in the name of the late Nathan Kimaiyo Tarus - a contradiction on the face of the affidavit. No title deed, green card or official search was annexed. The 1988 letter showed the land divided into 34 plots, and the third 100-acre portion was never given to Abraham Tarus, making the extent of the claim unclear and possibly affecting third parties not before the court.

p. 5

Legal principles established

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  • The three Giella limbs are sequential hurdles; satisfying one alone does not entitle an applicant to an injunction
  • He who alleges must prove; allegations must be supported by evidence even where the application is unopposed
  • An injunction cannot issue where the extent of the portion of land claimed is not clearly ascertainable

Court orders

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  1. 1.The Notice of Motion Application dated 12th November, 2024 is dismissed with no orders as to costs

Authorities

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Legislation

  • Civil Procedure ActSections 1A & 3A
  • Civil Procedure RulesOrder 40 Rules 1, 2 and 3
  • Environment and Land Court Act, 2015Section 13(7)(a)

Cases cited (6)

  • Giella vs Cassman Brown and Co. Ltd
    [1973] EA. 358
  • Kenya Commercial Finance Co. Ltd V. Afraha Education Society
    [2001] Vol. 1 EA 86
  • Mrao Ltd vs First American Bank of Kenya Ltd & 2 others
    (2003) eKLR
  • Pius Kipchirchir Kogo versus Frank Kimeli Tenai
    (2018) eKLR
  • Nguruman Limited v Jan Bonde Nielsen & 2 Others
    [2014] eKLR; Civil Appeal No. 77 of 2012 (Nairobi)
  • Charter House Investment Limited vs Simon K. Sang and 3 Others
    [2010] eKLR
Jurisdiction invoked
Sections 1A & 3A of the Civil Procedure Act, Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules, and Section 13(7)(a) of the Environment and Land Court Act, 2015

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, "Korir (Suing as Personal Representative of the Estate of Abraham Kipkorir Tarus) v Kogo (Sued as Personal Representative of the Estate of the Late Nathan Kimaiyo Tarus) (Environment & Land Case E065 of 2024) [2025] KEELC 3054 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3054/eng@2025-04-03

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