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ELCDismissedNot stated in excerpt (Kericho ELC)· [2025] KEELC 3798 (KLR)

Cheruiyot & another (Suing as the Legal Representatives of the Estate of the Late Mary Chebet Sanga) v Chepkwony (Sued as the Legal Representative of the Estate of the Late Cheres Tapkerono Koske - Deceased) & 2 others (Environment & Land Case E007 of 2024) [2025] KEELC 3798 (KLR)

Environment and Land Court
12 May 2025
4,863 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kericho (L. A. Omollo, J) determined the Plaintiffs/Applicants' Notice of Motion dated 15th May 2024 seeking a temporary injunction restraining the Defendants from dealing with LR Kericho/Kaptebengwet/9 and its resultant subdivisions 255, 256 and 257, pending trial. The Plaintiffs, administrators of the estate of the late Mary Chebet Sanga, contended that the deceased was the registered owner of the mother parcel and that the late Cheres Tapkerono Koske fraudulently subdivided and transferred the resultant parcels to himself in collusion with the Land Registrar. The 1st Defendant countered that the Plaintiffs are grandchildren, not children, of the deceased, and that the deceased herself sold and transferred portions, including two acres to his late father, so the subdivision was lawful. Applying the Giella v Cassman Brown conditions, the court found no prima facie case, since the central dispute - whether the subdivision was effected by the deceased or by Cheres Koske without her consent - could only be resolved at trial. Irreparable injury was not shown, the claim of an imminent transfer being unsupported by evidence, and the balance of convenience favoured the 1st Defendant who is in occupation claiming through a registered deceased proprietor. The application was dismissed with costs, but the court, invoking Section 3A of the Civil Procedure Act, Section 13 of the Environment and Land Court Act and Practice Direction No. 28(k), ordered maintenance of the status quo and prohibited any subdivision, transfer or alteration of the physical or legal status of the suit parcels pending hearing and determination of the suit.

Key legal issues

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01

Prima facie case

Holding

Applicants did not demonstrate a prima facie case as the disputed issue - whether the subdivision was effected by the deceased with or without her consent - can only be resolved at trial

Reasoning

The court found the green cards show parcel 9 closed on subdivision with resultant parcels registered to Mary Chebet Sanga and later transferred to Cheres Tapkerono Koske. The central dispute, whether the subdivision was done by the late Cheres Tapkerono Koske without consent or by the late Mary Chebet Sanga herself following sales, was held to be a matter for the full hearing.

p. 9
02

Irreparable injury

Holding

Not demonstrated; allegation of impending transfer unsupported by evidence

Reasoning

The applicants claimed irreparable harm because the 1st Defendant was in the process of transferring the resultant subdivisions to his name, but no evidence supported that assertion. Registration of parcels 256 and 257 in the name of the late Cheres Tapkerono Koske, whose estate the 1st Defendant represents, meant no demonstrable uncompensable injury was shown.

p. 10
03

Balance of convenience

Holding

Does not tilt in favour of the Applicants since the 1st Defendant is in occupation claiming through a registered deceased proprietor

Reasoning

Applying Pius Kipchirchir Kogo v Frank Kimeli Tenai and Paul Gitonga Wanjau, the court held that the 1st Defendant, in physical occupation and claiming through his deceased father who is registered owner, would suffer greater inconvenience if restrained; the balance of convenience therefore favoured the Defendants.

p. 10
04

Preservation of subject matter

Holding

Court invoked inherent and statutory powers to preserve the suit property via status quo orders notwithstanding dismissal of the injunction

Reasoning

Relying on Section 3A of the Civil Procedure Act, Section 13 of the Environment and Land Court Act and Practice Direction No. 28(k) (Gazette Notice No. 5178 of 25th July 2014), the court maintained the status quo and barred any alteration of the physical or legal status of the land pending trial.

p. 11

Legal principles established

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  • The three Giella v Cassman Brown conditions govern the grant of interlocutory injunctions: prima facie case with probability of success, irreparable injury not compensable in damages, and balance of convenience.

Court orders

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  1. 1.The Notice of Motion dated 15th May, 2024 is dismissed with costs
  2. 2.The status quo obtaining as at the date of the ruling shall be maintained pending the hearing and determination of the suit
  3. 3.Parties are prohibited from subdividing and/or transferring land parcel Nos. Kericho/Kaptebengwet/255, 256 and 257 and/or doing any activities whose effect shall be to alter the physical or legal status of the suit land pending hearing and determination
Jurisdiction invoked
Sections 1A, 1B & 3A of the Civil Procedure Act; Order 40 Rule 1 & Order 51 Rule 1 of the Civil Procedure Rules; Section 13 of the Environment and Land Court 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, "Cheruiyot & another (Suing as the Legal Representatives of the Estate of the Late Mary Chebet Sanga) v Chepkwony (Sued as the Legal Representative of the Estate of the Late Cheres Tapkerono Koske - Deceased) & 2 others (Environment & Land Case E007 of 2024) [2025] KEELC 3798 (KLR)", Case Analysis (2025). Not stated in excerpt (Kericho ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3798/eng@2025-05-12

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