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ELCDismissedNot stated on the face of the ruling (ELC suit, Kericho, land parcel Kericho/Kipkelion/Barsiele Block 2 (Kaplaba) 45 vs 41)· [2025] KEELC 6179 (KLR)

Chirchir & another (Both Suing as Legal Representatives of the Estate of Kipchirchir Arap Marusoi) v Bor & another (Environment and Land Case E033 of 2024) [2025] KEELC 6179 (KLR)

Environment and Land Court
25 September 2025
6,247 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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A Kenyan land court refused to stop a disputed ten-acre land claim because the applicants contradicted themselves, with the boundary question now headed for full trial.

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 16th December 2024 seeking a temporary injunction under Order 40 of the Civil Procedure Rules restraining the Defendants from trespassing on, selling, leasing, sub-dividing or otherwise interfering with land parcel Kericho/Kipkelion/Barsiele Block 2 (Kaplaba) 45, pending determination of the suit. The Plaintiffs, legal representatives of the estate of Kipchirchir Arap Marusoi, claimed the 1st Defendant had encroached on ten acres of their parcel. The 1st Defendant countered that the true dispute is a boundary dispute; that the disputed ten acres fall within his deceased father's parcel, Kaplaba 41; that a 2024 County Surveyor's report and the Kaplaba Estate Limited members register support his position; and that the Plaintiffs' title showing 20.98 Ha exceeds their allocated 16.66 Ha. Applying Giella v Cassman Brown, the court held the Applicants failed to establish a prima facie case because of contradictions in their affidavits on whether the 1st Defendant occupied the disputed portion, and because ownership of the ten acres raised a triable issue. They also failed to demonstrate irreparable injury, and the balance of convenience did not favour them given the uncertainty over possession. The application was dismissed with costs on 25th September 2025, with the substantive boundary question reserved for the full hearing.

Key legal issues

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01

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

Holding

No - the Applicants contradicted themselves on whether the 1st Defendant was in occupation of the disputed land, and the rival title/boundary claims raised a triable dispute best resolved at the hearing

Reasoning

The Applicants claimed the 1st Defendant had rendered the disputed portion inaccessible to them while simultaneously asserting he had never occupied any part of the suit parcel. Combined with conflicting title, register, map and survey evidence, the court could not conclude that an apparent right had been infringed calling for rebuttal. The question of which parcel the ten acres belongs to was reserved for trial.

p. 12
02

Whether the Applicants would suffer irreparable injury not compensable by damages

Holding

No - the ten-acre boundary dispute over land is measurable and the injury claimed (emotional distress, inability to use land) was speculative given the contradictory assertions

Reasoning

Applying Nguruman and Kogo, the court held the Applicants had to demonstrate actual, substantial and demonstrable injury incapable of monetary compensation. Their claims were undermined by contradictory depositions on possession, and the dispute was essentially one of acreage/boundary that can be quantified, so damages would suffice.

p. 13
03

Whether the balance of convenience tilts in favour of the Applicants

Holding

No - since possession of the disputed portion was unclear, the court could not hold that the Applicants would suffer greater inconvenience

Reasoning

Having failed on the first two limbs, the court determined the application on balance of convenience. Because it was unclear which family was in actual possession of the ten acres, the comparative mischief from withholding versus granting the injunction could not be shown to weigh in the Applicants' favour.

p. 13

Legal principles established

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  • The conditions for grant of an interlocutory injunction are a prima facie case with probability of success, irreparable injury not adequately compensable by damages, and, if in doubt, the balance of convenience
  • Internal contradictions in an applicant's pleadings/affidavits on material facts negate a prima facie case
  • Where possession of disputed land is unclear, the balance of convenience does not favour granting an injunction

Court orders

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  1. 1.The Plaintiffs/Applicants' Notice of Motion application dated 16th December, 2024 is dismissed
  2. 2.Costs of the application to the Defendants/Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rules 1, 2, 3 & 4
  • Civil Procedure ActSections 1A, 1B & 3A
  • Civil Procedure ActSection 27(1)
  • Land Registration ActSection 26
  • Land Registration ActSection 27

Cases cited (8)

  • Gielle vs Cassman Brown & Co. Ltd
    (1973) EA 3 / [1973] EA 358
  • Mrao Ltd vs First American Bank of Kenya Ltd & 2 Others
    [2003] eKLR
  • Kenya Electricity Transmission Company Limited v Kibotu Limited
    [2019] eKLR
  • Hezron Kamau Gichuru v Kianjoya Enterprises Ltd & another
    [2022] eKLR
  • Nguruman Limited versus Jan Bonde Nielson & 2 Others
    [2014] eKLR
  • Maina vs Stanbic Bank Kenya Limited & 2 Others
    [2022] 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
Order 40 Rules 1, 2, 3 & 4 of the Civil Procedure Rules and Sections 1A, 1B & 3A of the Civil Procedure 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, "Chirchir & another (Both Suing as Legal Representatives of the Estate of Kipchirchir Arap Marusoi) v Bor & another (Environment and Land Case E033 of 2024) [2025] KEELC 6179 (KLR)", Case Analysis (2025). Not stated on the face of the ruling (ELC suit, Kericho, land parcel Kericho/Kipkelion/Barsiele Block 2 (Kaplaba) 45 vs 41). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6179/eng@2025-09-25

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