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ELCPartially AllowedKitale ELC No. E029 of 2025

Tarus & 2 others (Suing as Administrators of the Estate of Elijah Kiptarus Kenei - Deceased) v Tesot & another (Sued as the Officials of Umoja Wa Wamawake Kipkeikei Women Group) (Environment and Land Case E029 of 2026) [2026] KEELC 3996 (KLR)

Environment and Land Court
29 June 2026
1,932 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court blocked an eviction because the notice didn't follow the Land Act, protecting an estate's land while preserving the other side's 0.5 acres.

What this practically means

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Executive summary

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This is a ruling on the plaintiffs' notice of motion seeking a temporary injunction to restrain the defendants from trespassing on or encroaching on L.R. No. 6614/13 beyond the portions they occupy. The plaintiffs, administrators of the estate of the late Elijah Kiptarus Kenei, allege that the defendants staked a claim to and threatened to occupy more land than the 0.5 acres they hold, jeopardising the estate. The defendants opposed, contending that the dispute was conclusively determined in Kitale ELC No. 152 of 2007, affirmed on appeal in Eldoret Civil Appeal No. 82 of 2020, that the plaintiffs were witnesses in the former suit relitigating determined issues (res judicata), that the court lacks jurisdiction, and that the plaintiffs concealed material facts. The defendants also relied on a notice to vacate issued under the decree. Applying the Giella -vs- Cassman Brown principles, the court found that the eviction notice dated 3/3/2026 did not comply with Section 152A-I of the Land Act and appeared to reach beyond the 0.5 acres decreed, establishing a prima facie case. Undisputed evidence of imminent eviction satisfied irreparable harm, and the balance of convenience favoured maintaining the status quo. The res judicata and jurisdiction objections could not be resolved at the interlocutory stage because the defendants did not attach the former pleadings and judgment. The court granted a temporary injunction maintaining the status quo for one year, expressly preserving the defendants' occupation of the decreed 0.5 acres, and conditioned the orders on the plaintiffs depositing Kshs. 100,000/= as security for costs within 14 days, failing which the interim orders stand vacated. No costs order was made.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the plaintiffs have established a prima facie case with a probability of success to warrant a temporary injunction
  2. 2.Whether the plaintiffs will suffer irreparable loss not compensable in damages if the injunction is not granted
  3. 3.Whether the balance of convenience tilts towards granting or refusing the injunction
  4. 4.Whether the suit is res judicata in view of Kitale ELC No. 152 of 2007 and Eldoret Civil Appeal No. 82 of 2020
  5. 5.Whether the court lacks jurisdiction, and whether the plaintiffs are guilty of non-disclosure of material facts disentitling them to equitable relief

Key legal issues

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01

Whether a prima facie case was established

Holding

A prima facie case was established because the defendants' eviction notice did not comply with Section 152A-I of the Land Act and appeared to extend beyond the 0.5 acres decreed to them

Reasoning

The court examined the notice of eviction dated 3/3/2026 read together with the decree in the former suit and found it unclear whether the defendants were mandated to evict alleged illegal occupants beyond the 0.5 acres decreed to them. Since the notice did not comply with the Land Act eviction provisions, the plaintiffs' threatened right beyond the decreed boundary warranted rebuttal, satisfying the Mrao test for a prima facie case.

p. 9
02

Irreparable loss and balance of convenience

Holding

Undisputed evidence of imminent or threatened eviction satisfied irreparable harm, and the balance of convenience favoured maintaining the status quo pending trial

Reasoning

There was undisputed evidence of an eviction notice to vacate which had lapsed. The court held that the balance of convenience favoured maintaining the status quo until the suit was determined, but tailored the order so that the defendants retained their decreed 0.5 acres, and limited the interim order to one year, with security for costs as a condition.

p. 9
03

Res judicata raised on the interlocutory application

Holding

The res judicata objection could not be determined because the defendants did not attach the pleadings and judgment of the former suit to their replying affidavit

Reasoning

Although the defendants alleged the suit was res judicata following Kitale ELC No. 152 of 2007 and the appeal in Eldoret Civil Appeal No. 82 of 2020, their replying affidavit annexed only the decree and judgment but not the pleadings, and no statement of defence raising the issue had been filed. The court therefore could not conclude that the plaintiffs were relitigating matters conclusively determined.

p. 9

Legal principles established

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  • Res judicata must be strictly proved by the party alleging it, showing a previous suit between the same parties, the same title, final determination by a competent court and the same issues
  • A notice of eviction that does not comply with Section 152A-I of the Land Act cannot found a lawful eviction
  • Irreparable damage must be real, apparent and imminent, not based on mere fear or speculation

Court orders

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  1. 1.A temporary order of injunction restraining the defendants from trespassing on or encroaching beyond the 0.5 acres decreed to them in the previous suit, maintaining the status quo until the suit is heard and determined
  2. 2.The interim order to last for one year only, without stopping the defendants from continuing occupation of the 0.5 acres decreed to them
  3. 3.The plaintiffs to deposit Kshs. 100,000/= in court as security for costs within 14 days, failing which the interim orders shall stand vacated

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original civil jurisdiction of the Environment and Land Court over the suit land L.R. No. 6614/13; interim injunctive relief under civil procedure and the Land Act

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It does not comply fully with Section 152A-I of the Land Act. The court finds that the plaintiffs have established a prima facie case.
p. 9Prima facie case based on non-compliant eviction notice
The balance of convenience tilts in favor of maintaining the status quo until the suit is heard and determined.
p. 9Balance of convenience
The plaintiffs are ordered to deposit Kshs. 100,000/= in court as security for costs within 14 days from the date hereof; otherwise, the interim orders shall stand vacated.
p. 10Final orders - security for costs
Such an order, however, does not stop the defendants from continuing with the occupation of the portion of 0.5 acres decreed to them in the previous suit. The order shall last for one year only.
p. 9Scope and duration of interim orders

Issues in the judgment

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minor

The application is referred to inconsistently as dated 29/4/2026 and 27/4/2026

minor

The court records that no statement of defence had been filed despite the defendants raising res judicata, which they note was only argued in submissions

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, "Tarus & 2 others (Suing as Administrators of the Estate of Elijah Kiptarus Kenei - Deceased) v Tesot & another (Sued as the Officials of Umoja Wa Wamawake Kipkeikei Women Group) (Environment and Land Case E029 of 2026) [2026] KEELC 3996 (KLR)", Case Analysis (2026). Kitale ELC No. E029 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3996/eng@2026-06-29

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