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ELCDismissedKapsaret/Kapsaret Block 11 (Teldet)/75 suit — Notice of Motion dated 29th January 2026· [2026] KEELC 3105 (KLR)

Biwott v Biwott (Environment and Land Case E007 of 2026) [2026] KEELC 3105 (KLR)

Environment and Land Court
21 May 2026
CYC. K. Yano
2,875 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~12 min to read original · ~4 min brief

The bottom line

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An Eldoret court refused to stop the sale of land claimed as matrimonial property, ruling that land courts cannot decide matrimonial property disputes.

What this practically means

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Executive summary

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The plaintiff/applicant, the wife of the defendant/respondent since 1985, sought a temporary injunction restraining him from selling, subdividing, transferring, alienating, leasing or interfering with land parcel Kapsaret/Kapsaret Block 11(Teldet)/75 pending determination of an Originating Summons. She deponed that the land was matrimonial property acquired during the marriage and that the respondent had clandestinely sold it to a third party who was fencing and developing it without her consent. The respondent opposed the application through Grounds of Opposition and a Replying Affidavit, asserting that he acquired the land in 2024 after separation using his own resources, that it is not matrimonial property within section 6 of the Matrimonial Property Act, that the applicant never occupied it or contributed to its acquisition, and that any alleged harm is compensable in damages. The court framed two issues: whether the requirements for a temporary injunction were met, and costs. Applying the Giella v Cassman Brown principles as restated in Nguruman Limited v Jan Bonde Nielsen, the court found it could not determine the prima facie case limb because the claim depended on whether the land was matrimonial property, a question outside the ELC's jurisdiction under Article 162(2)(b) and the Environment and Land Court Act. It also held that injunctions would condemn the alleged third-party purchaser unheard. On irreparable injury, no actual, substantial or demonstrable harm beyond damages was proved, and the balance of convenience favoured the respondent. The application was dismissed with costs to the defendant/respondent.

Key legal issues

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01

Prima facie case

Holding

The applicant's claim rested on the land being matrimonial property, but the court lacks jurisdiction to determine that question and could not assess whether a prima facie case was established; additionally, restraining a third-party purchaser would condemn an unheard party

Reasoning

The applicant's rights claim depended entirely on the suit land being matrimonial property acquired during marriage. The court held that matrimonial property questions fall outside its jurisdiction under Article 162(2)(b) and the Environment and Land Court Act, so it could not resolve the core issue. It further noted the land had allegedly been sold to a third party now developing it, and injunction orders would adversely affect that non-party without a hearing, contrary to the constitutional right to be heard.

p. 5
02

Irreparable loss and injury

Holding

Not demonstrated; the applicant did not prove actual, substantial and demonstrable harm beyond what damages could compensate

Reasoning

Citing Nguruman Limited v Jan Bonde Nielsen, the court held the burden lies on the applicant to demonstrate injury that is actual, substantial and demonstrable, not speculative. The applicant failed to demonstrate that she was in possession or use of the suit land, and adduced no evidence of harm incapable of monetary compensation. Absent proof, irreparable injury was not made out.

p. 6
03

Balance of convenience

Holding

It favours the respondent in declining the injunction

Reasoning

Having found no prima facie case and no irreparable injury, and given the alleged third-party developments on the land, the court found the hardship of granting the injunction outweighed that of refusing it. The balance of convenience tipped in the respondent's favour, and the third limb of the Giella test also failed.

p. 6

Legal principles established

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  • The three Giella v Cassman Brown principles for temporary injunction are to be applied as separate, distinct and sequential hurdles
  • This court cannot determine whether land is matrimonial property, as that jurisdiction is reserved to other courts
  • Adverse injunction orders cannot issue against a non-party who has not been heard

Court orders

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  1. 1.The Notice of Motion Application dated 29th January, 2026 is dismissed
  2. 2.Costs of the application are awarded to the defendant/respondent
Jurisdiction invoked
Article 162(2)(b) of the Constitution as read with the Environment and Land Court Act, 2015; Order 40(1)(2) of the Civil Procedure Rules; section 13(7)(a) of the Environment and Land Court 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, "Biwott v Biwott (Environment and Land Case E007 of 2026) [2026] KEELC 3105 (KLR)", Case Analysis (2026). Kapsaret/Kapsaret Block 11 (Teldet)/75 suit — Notice of Motion dated 29th January 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3105/eng@2026-05-21

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