Shaban Kiplagat Kiprono v Christine Cherop (Sued as the Administrator/Legal Representative of the Estate of Appollo Ohanga Mbanda Alias Apollo Ohanga Mbanda alias Apollo Ohanga Nbanda - Deceased)
The bottom line
#Kenya's Environment and Land Court froze further dealings in disputed Eldoret land after an administrator secretly transferred it mid-lawsuit, but refused to cancel the transfer yet.
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 present application is res judicata
- 2.Whether the Respondent's actions ran afoul of the doctrine of lis pendens
- 3.Whether the Applicant is entitled to an order of injunction
- 4.Whether the Court should cancel the transfer already registered in favour of Florence Chepkor
- 5.Who shall bear the costs of the application
Key legal issues
#Whether the application was res judicata
Not res judicata; the cause of action differs from the earlier injunction application, and special circumstances (the clandestine transfer) displace the doctrine
Although the earlier injunction application was heard and dismissed on merit, the earlier application arose from the eviction of the Applicant; the present application arises from discovery of a secret transfer during the suit. The identity-of-cause-of-action ingredient is absent. Further, res judicata cannot shield a party's own illegal transactions, and special circumstances warrant displacement of the normal rules.
Whether the Respondent breached the doctrine of lis pendens
Yes; the suit was actively prosecuted when the deceased Respondent transferred the property to herself, intending to remove it from the court's reach
The suit was filed and actively prosecuted, the deceased Respondent had been served and had entered appearance, yet transferred the land to herself on 08.09.2021 before the ruling. Dismissal of the injunction application gave no authority to transfer. The succession court order excuse failed: no contempt citation existed, and disclosure of the pending suit would have protected her.
Whether an injunction should issue
Yes, on the preservation basis under Order 40 rule 1, not the Giella criteria
Although the Giella criteria were not met on materially unchanged facts since the 2021 dismissal, Order 40 rule 1 requires only that property in dispute be in danger of alienation. That danger had become a reality through the secret transfer, so an injunction was necessary to preserve the property pending determination.
Whether the transfer should be cancelled and title reverted at the interlocutory stage
No; cancellation of title cannot issue at an interlocutory stage, and the adverse possession claim survives a change of ownership
The application is interim and should preserve the status quo without determining ultimate rights. In adverse possession, a claim runs against the title, not the current holder, so the transfer does not prejudice the Applicant, and the injunction safeguards against further alienation.
Legal principles established
#- Res judicata applies to interlocutory applications but only where the cause of action is identical; it yields to special circumstances and cannot shield illegal transactions
- Lis pendens is triggered by active prosecution of a suit, not mere filing, and binds the parties and any person acquiring the litigated property
- A change of ownership of land does not defeat a matured or maturing adverse possession claim; the claim runs against the title
Court orders
#- 1.An order of temporary injunction restraining the Respondent, her agents, servants, employees or anyone acting on her behalf from further sub-dividing, transferring, alienating, disposing of, damaging, destroying, changing the structure of, parting with possession of, diminishing the value of or in any other way dealing with Title Number Eldoret Municipality Block 23 (King'ong'o)/639 pending hearing and determination of the suit
- 2.The Respondent shall bear the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 162(2)(b) and 165 of the Constitution (Environment and Land Court jurisdiction); Civil Procedure Act and Civil Procedure Rules
Relief refused
#Cancellation of the transfer/registration in the Respondent's name of 8/9/2021 and reversion of title to the Estate
Interlocutory stage is not appropriate for cancelling title; adverse possession claim unaffected by change of ownership and injunction suffices as safeguard
Declaration that the transfer of the suit land from the Estate to Florence Chepkor was null and void
Would determine ultimate rights of the parties at an interlocutory stage without special circumstances
Costs
The Respondent shall bear the costs of this application.
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.
An order of temporary injunction be and is hereby issued restraining the Respondent by herself, her agents, servants, employee or by any one acting on her behalf from further subdividing, transferring, alienating, disposing of, damaging, destroying, changing the structure thereof, parting with possession or diminishing the value or in any other way dealing with Title Number Eldoret Municipality Block 23 (King'ong'o)/639
There must be an end to interlocutory applications as much as there ought to be an end to litigation.
the doctrine of lis pendens kicks in from the moment proceedings are instituted, until the final determination of the matter by the court.
Rather, it is upon the active prosecution of that suit that the doctrine automatically sets in.
a claimant's claim to the land runs against the title and not necessarily against the current holder of the title.
Issues in the judgment
#Date of motion stated inconsistently as 30 September 2025 and 30 June 2025
Transfer date given as 28/6/2021 in prayer 4 but 08/09/2021 in body and prayer 3
Costs provision misattributed to Civil Procedure Rules instead of Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shaban Kiplagat Kiprono v Christine Cherop (Sued as the Administrator/Legal Representative of the Estate of Appollo Ohanga Mbanda Alias Apollo Ohanga Mbanda alias Apollo Ohanga Nbanda - Deceased)", Case Analysis (2026). Environment and Land Case E014 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5614/eng@2026-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.