Leripen v Kochore & another (Environment and Land Appeal E027 of 2025) [2025] KEELC 7636 (KLR)
The bottom line
#The Environment and Land Court refused to protect a Marsabit plot that had been declared part of a deceased person's estate, because only succession law can govern it.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.whether the Judgment and decree of the subordinate court is capable of being stayed either in the manner sought or otherwise
- 2.whether the Applicant herein has established a basis to warrant the grant of an order of temporary injunction or otherwise
- 3.whether the Applicant is entitled to an order of mandatory injunction in the manner sought or otherwise
Key legal issues
#Whether the judgment and decree of the subordinate court could be stayed
No; the decree was negative (the claim was dismissed) and a negative decree cannot be executed or stayed.
The trial magistrate dismissed the appellant's claim and declared the suit property part of the estate of Bahati Kochore (deceased). The decree did not command the applicant to do or abstain from doing anything. Following Western College v Oranga and later Court of Appeal authority, nothing exists capable of execution save costs, so the stay prayer was mounted in vacuum.
Whether the applicant established a basis for a temporary injunction pending appeal
No; the applicant had no accrued prima facie rights in the property and the injunction sought would amount to a back-door eviction of the respondents in possession.
The applicant had not obtained any declaration of ownership; the property was declared part of a deceased's estate; and the respondents had admittedly been in possession since 2019. An injunction averts threatened action and cannot issue where the act has occurred. Relying on Kiembeni Primary School and Shah v Shah, courts should decline interlocutory injunctions with the effect of permanent or mandatory relief.
Whether a mandatory injunction reverting possession to the appellant could issue
No; the higher threshold of special circumstances was unmet and such an order would contravene section 45 of the Law of Succession Act.
Mandatory injunctions issue sparingly and on clear cases or special circumstances (Nation Media Group v Mwau; Kenya Breweries v Okeyo). The applicant held no legal rights over the property, the respondents were admittedly in possession, and the property had been declared part of a deceased's estate whose administration falls under the Law of Succession Act. Granting possession to the applicant would sanction intermeddling contrary to section 45.
Legal principles established
#- A negative decree or order (a dismissal) is incapable of being stayed under Order 42 Rule 6.
- A temporary injunction can only issue to protect prima facie legal or equitable rights and cannot be used to achieve an eviction or mandatory relief at the interlocutory stage.
- A mandatory injunction issues sparingly, on proof of special circumstances, and a court cannot grant an order whose effect is to contravene section 45 of the Law of Succession Act prohibiting intermeddling with a deceased's free property.
- Property declared to form part of a deceased person's estate can only be dealt with through the probate and administration jurisdiction under the Law of Succession Act.
Court orders
#- 1.The Application dated 30th September 2025, be and is hereby dismissed.
- 2.Costs of the Application be and are hereby awarded to the respondents.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Senior Principal Magistrate's Court, Marsabit
- Marsabit E & L suit No. E003 of 2021
- Jurisdiction invoked
- Sections 1A, 1B, 3A & 63(e) of the Civil Procedure Act; Order 42 Rule 6 and Order 40 Rules 1 & 2 of the Civil Procedure Rules; Article 40 of the Constitution 2010 (first-instance court hearing an appeal from the subordinate court)
Relief refused
#Stay of execution of the judgment and decree of 9th September 2025
The appellant's suit was dismissed and the resultant decree was negative; a negative decree is incapable of being stayed.
Temporary injunction restraining the respondents from collecting rental proceeds from plot No. 90 Marsabit Town
The applicant had not established a prima facie case or accrued any rights in the property, which has been declared part of a deceased's estate.
Mandatory injunction reverting control, possession and management of the suit property to the appellant
The higher threshold of special circumstances was not met and granting it would contravene section 45 of the Law of Succession Act against intermeddling with a deceased's property.
Deposit of rental proceeds into a joint interest-earning account in the names of the parties' advocates
Fell with the failed prayers for stay and injunction; the applicant did not meet the legal threshold for the orders sought.
Costs
Costs of the Application be and are hereby awarded to the respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
I beg to state and underscore that a negative decree or order is incapable of being stayed or at all.
The Application dated 30th September 2025, be and is hereby dismissed.
Costs of the Application be and are hereby awarded to the respondents.
In the circumstances, I find and hold that this court is not seized of the jurisdiction to decree a mandatory injunction whose net efiect is to sanction the dealing with a property that is said to form part of the estate of the deceased.
an order of temporary injunction cannot issue or be granted where the act complained of has occurred or accrued.
Issues in the judgment
#The names of the respondents before the court are never expressly stated; they are referred to only as 'the respondents' and the 1st respondent, so party identification rests on the trial suit references.
The case number of the appeal before this court is not stated anywhere in the judgment; only the trial court suit number (Marsabit E & L suit No. E003 of 2021) appears.
The judgment contains recurring typographical errors (e.g. 'efiect', 'afiidavit', 'ofience', 'dismissal' used for 'deserves'), indicating OCR or transcription defects.
The title on the record labels the document as dealing with a Notice of Motion, and the heading 'Final Disposition' confirms it disposes of the application only, though the caption of the appeal itself is not reproduced.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Leripen v Kochore & another (Environment and Land Appeal E027 of 2025) [2025] KEELC 7636 (KLR)", Case Analysis (2025). Not stated in the judgment (appellant's appeal against Marsabit E & L Suit No. E003 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7636/eng@2025-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.