Marindich v Cheriro (Environment and Land Case Civil Suit E023 & E025 of 2025 (Consolidated)) [2025] KEELC 6100 (KLR)
The bottom line
#An Eldoret court froze a disputed land sale: no one may use or sell the property until a court-ordered site visit clarifies who is actually on the land.
What this practically means
#Executive summary
#Key legal issues
#Whether a preliminary objection attacking an affidavit's swearing on factual grounds is competent
Not competent; the objection required investigation of facts (the 3rd Defendant's whereabouts) and was dismissed
The objection that the 3rd Defendant was abroad when the affidavit was sworn required the court to investigate factual matters capable of contest. Such matters can only be determined at the hearing or via a formal application allowing evidence, not as a pure point of law under the Mukisa Biscuit definition.
Who is entitled to the temporary injunction over the suit property
Neither party satisfied the Giella conditions on the material available; a status quo order was issued pending a court-ordered site visit
Both parties asserted prima facie cases, but there was no proof that any consideration reached the registered owner, and both claimed occupation and loss. With the parties' positions on the ground unclear, the court directed a site visit by the Deputy Registrar and maintained the status quo (no party using the land) pending that report.
Whether the registered owner should be restrained from alienating the suit property
Yes; a temporary injunction restraining alienation issued under the doctrine of lis pendens to preserve the subject matter of the suit
If the registered owner disposed of the land pending determination, the plaintiff's claim could be defeated and the proceedings rendered academic. Lis pendens, applicable as common law via section 3(1) of the Judicature Act, justified restraining Joshua Soi from selling, transferring or otherwise alienating the property pending hearing.
Costs of the two applications
Each party to bear their own costs, given the pending site visit
Although costs ordinarily follow the event under section 27 of the Civil Procedure Act, both plaintiffs had sought injunctions against each other and the court deferred final determination pending the site visit, making it prudent for each side to bear its own costs.
Legal principles established
#- A preliminary objection must raise a pure point of law and cannot depend on facts requiring ascertainment or evidence
- A status quo order should clearly describe the state of affairs being preserved
- The doctrine of lis pendens restrains parties from disposing of or dealing with suit property pending litigation, applicable in Kenya via section 3(1) of the Judicature Act
Court orders
#- 1.An order of status quo to be maintained by all parties, understood as none of the parties utilising the suit property pending a site visit by the Deputy Registrar and/or further orders
- 2.A temporary injunction restraining Joshua Soi Cheriro and his agents from selling, transferring, alienating or dealing with Moi's Bridge/Moi's Bridge Block 12 (Excullen)/364 in any manner pending hearing and determination of the suit
- 3.The 3rd Defendant's Preliminary Objection dated 4th April 2025 dismissed
- 4.Each party to bear their own costs
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court (interlocutory applications in land disputes)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Marindich v Cheriro (Environment and Land Case Civil Suit E023 & E025 of 2025 (Consolidated)) [2025] KEELC 6100 (KLR)", Case Analysis (2025). ELC No. E023 of 2025 (lead file), consolidated with ELC No. E025 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6100/eng@2025-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.