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ELCAllowedNot stated on the face of the ruling (suit concerning Title No. Kericho/Kabartegan/340)· [2025] KEELC 5515 (KLR)

Elijah & another (Suing as the Personal Representatives of the Estate of Elijah Arap Cheruiyot) v Langat (Sued as the Personal and Legal Representative of the Estate of the Late James Kipkirui Langat) & 5 others (Environment and Land Case E008 of 2023) [2025] KEELC 5515 (KLR)

Environment and Land Court
24 July 2025
6,342 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~25 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court in Kericho blocked all dealings on a family's ancestral land after finding its transfer weeks after the owner's death looked fraudulent.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kericho (L. A. Omollo, J) on the Plaintiffs/Applicants' Notice of Motion dated 19th October 2023 seeking a temporary injunction over Title No. Kericho/Kabartegan/340 pending the hearing of a suit in which they seek declarations that their late father, Elijah Arap Cheruiyot, was the rightful owner and that post-death dealings with the parcel, including its subdivision into Kericho/Kabartegan/1394 and a charge securing a Kshs 5,000,000 loan to the 3rd Defendant from the 6th Defendant, were fraudulent and void. Only the 6th Defendant (Letshego Kenya Limited) responded, contending res judicata by reference to Kericho ELC Case No. 68 of 2018 (OS), dismissed on 27th March 2023, and contesting the Giella criteria. The court framed three issues: res judicata, the injunction criteria, and costs. It held the former suit was struck out for want of locus standi and not decided on merits, and the parties differed, so res judicata failed. On the documents, including the green card showing a transfer of the parcel on 12th October 1995, weeks after the owner's death and before succession, the court found a prima facie case, irreparable harm given the parents' graves on the land, and balance of convenience favouring the Plaintiffs. The application was allowed: a temporary injunction issued over parcel 340, with costs of the application to abide the outcome of the suit.

Key legal issues

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01

Whether the application is res judicata given Kericho ELC Case No. 68 of 2018 (OS)

Holding

The plea of res judicata fails because the former suit was struck out for lack of locus standi and was not determined on merits, and the parties in the two suits are not identical.

Reasoning

Applying Section 7 of the Civil Procedure Act and the ingredients in Christopher Kenyariri v Salama Beach, the court examined party identity and whether the former suit was heard and finally determined. The 2nd Plaintiff, 1st and 3rd Defendants were not parties to the former suit, and the former Originating Summons was struck out for want of locus standi, so it was not heard and determined on merits.

p. 10
02

Whether the Plaintiffs established a prima facie case

Holding

A prima facie case was established on the documents showing the deceased was registered owner, died on 15th September 1995, and the parcel was transferred to James Kipkurui Langat on 12th October 1995 before succession proceedings commenced.

Reasoning

The green card showed registration of Elijah Arap Cheruiyot and the transfer after his death; the grant ad litem and death certificate supported the Plaintiffs' standing. The court found the circumstances of the post-death transfer sufficient to show an apparent right requiring rebuttal, per the Mrao definition of a prima facie case.

p. 12
03

Whether irreparable injury not compensable in damages was demonstrated

Holding

Yes. The Plaintiffs showed the parcel bears sentimental value as their parents' burial place and that they face irreparable damage if dealings on the suit property continue.

Reasoning

Relying on Nguruman and Pius Kipchirchir Kogo, the court found the injury actual and not measurable in monetary terms given the burial of the Plaintiffs' parents on the land. The court noted the application concerns parcel 340, not 1394, and that no nexus had been shown between 1394 and 340, but still found irreparable harm established.

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Where the balance of convenience lies

Holding

The balance of convenience tilts in favour of the Plaintiffs/Applicants.

Reasoning

Although the Plaintiffs had already surmounted the first two Giella conditions, the court considered balance of convenience per Pius Kipchirchir Kogo and Paul Gitonga Wanjau and found the Plaintiffs would suffer greater inconvenience than the 6th Defendant if the injunction were withheld.

p. 14

Legal principles established

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  • Res judicata does not apply where the former suit was struck out and not heard and determined on its merits, and where the parties differ
  • Sentimental attachment to land, including as a burial place of parents, may constitute irreparable harm not compensable in damages

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. Kericho/Kabartegan/340 or on any portion thereof or on any buildings thereon pending the hearing and determination of this suit
  2. 2.Costs of the application shall abide the outcome of the suit

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 7
  • Civil Procedure Rules, 2010Order 40 Rules 1 & 4
  • Civil Procedure Rules, 2010Order 5 Rule 17
  • Civil Procedure Rules, 2010Order 50 Rule 1
  • Civil Procedure Rules, 2010Order 37 Rule 8 (referred to in former suit ruling)
  • Land ActNot specified (referred to generally by 6th Defendant)

Cases cited (9)

  • Mrao vs First American Bank of Kenya Ltd & 2 Others
    [2003] eKLR
  • Nguruman Ltd vs Jan Bonde Neilsen & 2 Others
    [2014] eKLR
  • Giella vs Cassman Brown & Co. Ltd
    [1973] EA 358
  • Muthoni v K-Unity Sacco Limited
    (Commercial Case E003 of 2023) [2024] KEHC 3638 (KLR) (12 April 2024) (Ruling)
  • Wesley Kibagendi Jason v ECO Bank Ltd & another
    [2020] eKLR
  • Mary Wanjiku Mwaniki & another v Dream Credit Limited
    [2017] KEELC 339 (KLR)
  • Christopher Kenyariri vs Salama Beach
    [2017] eKLR
  • Pius Kipchirchir Kogo vs Frank Kimeli Tenai
    [2018] eKLR
  • Paul Gitonga Wanjau vs Gathuthis Tea Factory Company Ltd & 2 others
    [2016] eKLR
Jurisdiction invoked
Section 3A of the Civil Procedure Act; Order 40 Rules 1 & 4, Order 5 Rule 17 and Order 50 Rule 1 of the Civil Procedure Rules

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, "Elijah & another (Suing as the Personal Representatives of the Estate of Elijah Arap Cheruiyot) v Langat (Sued as the Personal and Legal Representative of the Estate of the Late James Kipkirui Langat) & 5 others (Environment and Land Case E008 of 2023) [2025] KEELC 5515 (KLR)", Case Analysis (2025). Not stated on the face of the ruling (suit concerning Title No. Kericho/Kabartegan/340). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5515/eng@2025-07-24

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