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ELCAllowedNot stated in the judgment· [2025] KEELC 4680 (KLR)

Toroitich (Suing as the Personal Representatives of the Estate of Toroitich Chebor - Deceased) v Choge & 2 others (Environment & Land Case E007 of 2025) [2025] KEELC 4680 (KLR)

Environment and Land Court
24 June 2025
MOM. A. Odeny
1,805 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Nakuru's Environment and Land Court blocked defendants from touching disputed Molo land, proving original ballot papers and receipts showing possession can trump a registered title at the injunction stage.

What this practically means

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Executive summary

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The Plaintiff, Esther Toroitich, moved the court by Notice of Motion dated 3rd February 2025 seeking a temporary injunction restraining the Defendants from trespassing on, entering, developing, occupying or dealing with Title No. Molo South/Langwenda Block 11/384 pending the hearing and determination of the suit. She deponed that her late husband, a member of Kalenjin Enterprises Ltd (now Rift Valley Enterprises Ltd), successfully balloted for the suit property in 1998 and that the family has been in possession and cultivation since, while the 1st Defendant fraudulently procured title with the connivance of the 3rd Defendant. The 1st Defendant countered that he purchased shares, was cleared by the company's directors in 2005, was issued the title on 28th April 2005 and lawfully sold the land to the 2nd Defendant, who has been in possession since 2006 and claims indefeasible title, alleging laches. The 1st Defendant also challenged the court's pecuniary jurisdiction, valuing the land at Kshs. 900,000/-. Counsel filed competing submissions relying on the Giella test and related authorities. Framing the sole issue as whether the conditions for a temporary injunction under Order 40 Rule 1 were met, the court, citing Rockland Kenya Limited v Elliot White Miller, found the Plaintiff had exhibited the original ballot paper and requisite receipts and that no evidence disproved her occupation. Holding that the purpose of a temporary injunction is to preserve the substratum of the case, the court found a prima facie case with a probability of success, allowed the application and issued a temporary injunction against the Defendants pending trial, with costs to the Plaintiff. Judgment delivered at Nakuru on 24th June 2025 by M. A. Odeny, Judge.

Key legal issues

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01

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

Holding

Yes - the Applicant exhibited the original ballot paper and requisite receipts and her family had been in possession and cultivating the land since allocation, with no evidence to disprove occupation

Reasoning

The court reviewed the supporting affidavit and documents, noting the original ballot paper to the suit property and requisite receipts were exhibited. The Applicant's family had been in possession and cultivating the land since allocation. The court found there was no evidence to disprove the Applicant's occupation of the suit land at that juncture, and therefore a prima facie case with a probability of success had been proved.

p. 4
02

Whether an interlocutory injunction should issue

Holding

Yes - the application was allowed and a temporary injunction issued restraining the Defendants from interfering with the suit property pending the hearing and determination of the suit

Reasoning

Applying the Giella test and Order 40 Rule 1, the court held the plaintiff had proved a prima facie case with a probability of success. Because a temporary injunction preserves the substratum of the case, the application was found to have merit and allowed with a restraint on the defendants pending trial, with costs to the plaintiff.

p. 4

Legal principles established

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  • The purpose of a temporary injunction is to preserve the substratum of the case, and a plaintiff who shows a prima facie case with a probability of success, supported by evidence of occupation, may be granted the injunction

Court orders

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  1. 1.A temporary injunction restraining the Defendants, their agents/servants and employees from trespassing, entering, invading, developing, occupying, interfering with, carrying out any demolition, construction or any transaction whatsoever on Title No. Molo South/Langwenda Block 11/384 or on any portion thereof or on any buildings thereon pending the hearing and determination of the suit
  2. 2.Costs to the Plaintiff

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 40 Rule 1
  • Constitution of KenyaArticle 40
  • Land Registration Act 2012Sections 24, 25 and 26

Cases cited (8)

  • Giella vs Cassman Brown & Co Ltd
    [1973] EA 358
  • Mrao vs First American Bank of Kenya Ltd & 2 others
    [2003] eKLR
  • Nguruman Ltd vs Jan Bonde Neilsen & 2 others
    [2014] eKLR
  • Mary Nduta Kimemia vs John Warubi Kibera
    [2017] eKLR
  • Wairimu Mureithi vs City Council of Nairobi
    Civil Appeal No 5 of 1979 [1981] KLR 322
  • Cheptanui Soy vs Michael Sayaya & Another
    [2018] eKLR
  • Virginia Edith Wambui vs Joash Ochieng Ougo
    Civil Appeal No 3 of 1987 [1987] eKLR
  • Rockland Kenya Limited v Elliot White Miller
    [1994] eKLR
Jurisdiction invoked
Original jurisdiction under Order 40 Rule 1 of the Civil Procedure Rules, 2010; the 1st Defendant contested pecuniary jurisdiction on the ground that the suit property is valued at Kshs. 900,000/-

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, "Toroitich (Suing as the Personal Representatives of the Estate of Toroitich Chebor - Deceased) v Choge & 2 others (Environment & Land Case E007 of 2025) [2025] KEELC 4680 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4680/eng@2025-06-24

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