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ELCPartially AllowedOriginating Summons dated 11th February 2025· [2026] KEELC 4631 (KLR)

Jepkemei v Arap Sitienei (Land Case (Originating Summons) E001 of 2025) [2026] KEELC 4631 (KLR)

Environment and Land Court
15 July 2026
GOG M A Ongondo
2,167 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kapsabet dealt with a preliminary objection dated 25th February 2025 and a Notice of Motion dated 13th February 2025 in a suit brought by originating summons dated 11th February 2025, in which the Plaintiff/Applicant claims 2.0 acres of land parcel Nandi/Surungai/219 by adverse possession. The Defendant/Respondent, the registered proprietor and brother of the Applicant's alleged late husband, objected on grounds that the court lacked jurisdiction because the claim concerns the estate of a deceased person, and that the Applicant lacked locus standi absent a grant of letters of administration, invoking Section 82(a) of the Law of Succession Act. The court, applying Mukisa Biscuit and Oraro, held that the objection depended on contested facts, principally whether the Applicant was married to the deceased, and was therefore not a pure point of law; it was dismissed. On the application for temporary injunction or maintenance of status quo, the court applied Giella and Nguruman, finding a prima facie case in the arguable adverse possession claim, irreparable harm in the potential loss of her home of many years, and the balance of convenience favouring the Applicant. The court partially allowed the application by issuing an order of maintenance of status quo confirming the Applicant's gainful possession and use of the 2.0 acres pending trial, directed a pre-trial conference, and ordered each party to bear their own costs.

Key legal issues

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01

Whether the preliminary objection raising jurisdiction and locus standi was sustainable

Holding

The preliminary objection was dismissed because its grounds depend on contested facts, chiefly proof of the alleged marriage, and are therefore not pure points of law; they are properly dealt with at the merits hearing.

Reasoning

The Applicant's ownership claim is tied to her alleged marriage to the deceased, a debatable issue requiring evidence. Following Mukisa Biscuit and Oraro, a preliminary objection must rest on pure points of law and not contested facts. Locus standi stems from the alleged marriage, which if proven or not can then aid the court in determining the dispute; hence the objection could not be sustained.

p. 3
02

Whether the Applicant met the Giella criteria for interim relief

Holding

The court found a prima facie case in the adverse possession claim, irreparable harm in the potential loss of her home, and balance of convenience tilting in her favour, warranting maintenance of status quo over the 2.0 acres.

Reasoning

The Applicant claims ownership by adverse possession which must be determined on merit, and she occupies the land, having built a home there since 1988; losing the home may not be compensated by damages. The Respondent, as registered proprietor, would lose nothing if she continues to occupy as she has since 1988, whereas denying orders would greatly inconvenience her if she succeeds at trial. Interim preservation orders already in place since 14th February 2025 would be continued as status quo.

p. 4

Legal principles established

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  • A preliminary objection must not involve contested facts or require the court to ascertain evidence; issues depending on proof of facts, such as a marriage said to ground locus standi, must be determined at the merits hearing.
  • A prima facie case in civil proceedings includes but is not confined to a genuine and arguable case, in which a right has apparently been infringed so as to call for an explanation or rebuttal.

Court orders

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  1. 1.The Notice of Preliminary Objection dated 25th February 2025 is dismissed
  2. 2.The application dated 13th February 2025 is partially allowed: an order of maintenance of status quo that the Applicant is in gainful possession and use of the 2.0 acres of LR. NO. NANDI/SURUNGAI/219 pending the hearing and final determination of the suit
  3. 3.The suit be set down for pre-trial conference
  4. 4.Each party to bear their own costs
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land

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, "Jepkemei v Arap Sitienei (Land Case (Originating Summons) E001 of 2025) [2026] KEELC 4631 (KLR)", Case Analysis (2026). Originating Summons dated 11th February 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4631/eng@2026-07-15

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