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ELCAllowedNot stated in the judgment (Notice of Motion dated 26th February, 2026)· [2026] KEELC 2933 (KLR)

Chepkiyeng v Cherubet & 2 others (Sued as the legal representatives of the Estate of Kipruto Cherubet alias Kipruto arap Cherubet - Deceased) (Land Originating Summons E011 of 2026) [2026] KEELC 2933 (KLR)

Environment and Land Court
14 May 2026
1,790 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Eldoret stopped any sale, subdivision or eviction involving 3 acres of land occupied by a family since 2004.

What this practically means

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Executive summary

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By a Notice of Motion dated 26th February, 2026 brought under Articles 40 and 23(2)(b) of the Constitution, Sections 25 and 26 of the Land Registration Act, Sections 107 and 110 of the Land Act and Order 40 of the Civil Procedure Rules, the applicant sought a temporary injunction restraining the respondents from invading, encroaching, trespassing, subdividing or alienating 3 acres of LR. No. 9507, and an inhibition against further transactions and subdivisions pending hearing of the suit. The applicant, Willy Kibet Chepkiyeng, deponed that he had been in actual, physical and peaceful possession of the 3 acres with his family since 2004, had substantially developed it, and had acquired ownership by operation of the Limitation of Actions Act through adverse possession. He exhibited a sale agreement, photographs and an official search. The respondents, through an affidavit sworn by Christopher Kemboi Cherubet, denied the applicant's possession, asserted the parcel was non-existent, and contended no prima facie case, irreparable harm or balance of convenience had been shown. The court, per C. K. Yano, J, framed a single issue: whether the applicant deserved a temporary injunction and inhibition pending trial. Applying Giella v Cassman Brown and Mrao v First American Bank, the court found a prima facie case with probability of success, irreparable harm if eviction occurred, and that the balance of convenience favoured the applicant. The application was allowed in its entirety: a temporary injunction and an inhibition were issued over the 3 acres pending hearing and determination of the suit, with costs in the cause.

Key legal issues

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01

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

Holding

Yes - on the totality of the material (sale agreement, photographs of developments, claimed adverse possession since 2004), the applicant established a prima facie case.

Reasoning

The applicant claims 3 acres by adverse possession since 2004, supported by a sale agreement, photographs of developments and an official search. The respondents merely denied possession and asserted the land is non-existent without dislodging the material placed before the court. At interlocutory stage the court does not resolve merits on contradictory affidavit evidence; it need only find an apparent legal right requiring rebuttal, which was satisfied here.

p. 3
02

Whether the applicant would suffer irreparable loss not compensable by damages

Holding

Yes - eviction and change of the status on the ground would irreparably harm the applicant and possibly render the suit nugatory.

Reasoning

The applicant deponed that forcible eviction of his family from land occupied since 2004 and fresh subdivision would change the status on the ground before determination of the suit. The court found the harm was satisfactorily set out and that damages would not adequately compensate an eviction, satisfying the second Giella condition.

p. 4
03

Where the balance of convenience lies

Holding

The balance of convenience tilts in favour of the applicant; the status of the suit property must be preserved to prevent the court issuing orders in vain.

Reasoning

Applying the lower-risk-of-injustice principle, the court held that preserving the subsisting status of the property allows the adverse possession claim to be heard and determined on merit. Withholding the injunction risked a greater mischief - alteration of the ground status and futile proceedings - than granting it.

p. 4

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 compensable by damages, and balance of convenience if in doubt.
  • A prima facie case is one in which a legal right has apparently been infringed calling for an explanation or rebuttal from the opposite party.
  • In interlocutory injunctive relief the court should opt for the lower rather than the higher risk of injustice.

Court orders

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  1. 1.Pending the hearing and determination of the suit, the respondents by themselves, their agents and/or servants are restrained by an order of temporary injunction from invading, encroaching, alienating or dealing in any manner whatsoever with 3 acres of that parcel of land known as LR. No. 9507.
  2. 2.An inhibition is issued stopping and/or restraining further transactions and subdivision over the portion measuring 3 acres in L.R No. 9507 pending the hearing and determination of this suit.
  3. 3.Costs of the application will be in the cause.

Authorities

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Legislation

  • Constitution of KenyaArticle 40
  • Constitution of KenyaArticle 23(2)(b)
  • Land Registration ActSections 25 and 26
  • Land ActSections 107 and 110
  • Civil Procedure RulesOrder 40
  • Limitation of Actions ActNot specified

Cases cited (4)

  • Giella vs. Cassman Brown & Co. Ltd
    (1973) E.A 358
  • Mrao Ltd vs. First American Bank of Kenya Ltd
    (2003) eKLR
  • Amir Suleiman vs. Amboseli Resort Limited
    (2004) eKLR
  • Pius Kipchirchir Kogo vs. Frank Kimeli Tenai
    (2018) eKLR
Jurisdiction invoked
Articles 40 and 23(2)(b) of the Constitution; Sections 25 and 26 of the Land Registration Act; Sections 107 and 110 of the Land Act; Order 40 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, "Chepkiyeng v Cherubet & 2 others (Sued as the legal representatives of the Estate of Kipruto Cherubet alias Kipruto arap Cherubet - Deceased) (Land Originating Summons E011 of 2026) [2026] KEELC 2933 (KLR)", Case Analysis (2026). Not stated in the judgment (Notice of Motion dated 26th February, 2026). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2933/eng@2026-05-14

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