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ELCAllowedELC OS No. E039 of 2025· [2026] KEELC 5674 (KLR)

Ismael Kiptoo Kiplagat v Rose J. Cherubet (Sued as the Legal Representative of the Estate of Evans Kibet Cherubet)

Environment and Land Court
23 September 2026
4,416 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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An Eldoret court protected a man who has farmed land since 1992, ruling that land disputes with a deceased owner's estate belong in the Environment and Land Court, not succession proceedings.

What this practically means

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Executive summary

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The Plaintiff/Applicant filed a Notice of Motion dated 25.11.2025 in an Originating Summons seeking temporary injunctions restraining the Defendant, the administrator of the estate of Evans Kibet Cherubet, from interfering with his use, possession, ownership and occupation of LR.No.Karuna/Sosiani Block 8 (Uswo)/286 pending the hearing of the application and the main suit. The Applicant claimed he purchased the property from the deceased between 1992 and 1996, holds the original title deed dated 14.01.1993, and has occupied the land for over twelve years without interruption, founding his claim on purchase and adverse possession. The Respondent opposed, arguing the Originating Summons was unsigned, that the property belongs to a deceased person whose estate is the subject of Eldoret High Court Succession No. E164 of 2004, that no Land Control Board consent was obtained, and that the proper forum is the Family/High Court. The Court framed five issues and held: the registered owner remains the deceased; the ELC has jurisdiction because the dispute concerns ownership and occupation between unrelated parties, not estate administration; and, applying Nguruman, Mrao and Pius Kipchirchir Kago, the Applicant established a prima facie case, irreparable harm (eviction would render him homeless), and the balance of convenience. The application dated 25.11.2025 was allowed with an injunction pending the hearing and determination of the main suit, and costs were awarded to the Applicant payable by the Respondent.

Key legal issues

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01

Jurisdiction of the ELC over a land claim against a deceased's estate

Holding

The ELC has jurisdiction because the dispute concerns ownership and occupation of land, not administration of the estate.

Reasoning

The Respondent argued the property belonged to a deceased person and only the Family/High Court in succession could determine beneficiaries' rights. The Court held the Originating Summons raises questions of purchase and adverse possession between two unrelated parties, which cannot be resolved in succession proceedings; such causes of action fall under the Environment and Land Court Act, not the Law of Succession.

p. 12
02

Prima facie case for injunction

Holding

Established: the Applicant pleaded purchase, possession since 1992, and holds the original title deed; the Respondent did not dispute his occupation.

Reasoning

Applying Mrao Ltd v First American Bank, the Court found the Applicant demonstrated an apparent infringement of his purchaser's ownership rights by the Respondent's dealings with the property as an estate asset through the succession cause, warranting an explanation or rebuttal.

p. 15
03

Irreparable injury

Holding

Demonstrated: eviction, rent demands or demolition would render the Applicant homeless before a full hearing.

Reasoning

The Applicant produced photographs showing a homestead on the land. The Court held that eviction, payment of rent, demolition of developments or barring use would cause irreparable loss, as he would be rendered homeless and destitute without a proper and full hearing; whether developments date from 1992 is left to trial.

p. 17
04

Balance of convenience

Holding

Tilts in the Applicant's favour once prima facie case and irreparable injury are shown.

Reasoning

The Court stated that having been satisfied on the first two ingredients, it was not in doubt that the balance of convenience favoured the Applicant, and concluded all three Nguruman ingredients were satisfied, rendering the application merited.

p. 18

Legal principles established

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  • A claim concerning ownership and occupation of land between parties unrelated to a deceased registered owner falls within the Environment and Land Court's jurisdiction and need not be litigated in the succession cause.
  • Interlocutory injunctions require the applicant sequentially to establish a prima facie case, irreparable injury, and balance of convenience.

Court orders

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  1. 1.The Application dated 25.11.2025 allowed
  2. 2.Temporary orders of injunction restraining the Defendant/Respondent, her servants and/or agents from trespassing, entering, ploughing, damaging, wasting, alienating, transferring or in any other way interfering with the Plaintiff's use, possession, ownership and occupation of LR.No.Karuna/Sosiani Block 8 (Uswo)/286 measuring 4.064 Hectares pending the hearing and determination of the main suit
  3. 3.Costs of the Application awarded to the Applicant, payable by the Respondent

Authorities

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Legislation

  • Limitation of Actions ActCap 22
  • Civil Procedure Rules, 2010Order 40 Rule 1
  • Environment and Land Court ActNo. 19 of 2012
  • Law of Succession

Cases cited (3)

  • Nguruman Limited versus Jan Bonde Nielsen & 2 others
    CA No.77 of 2012 (2014) eKLR

    Triple sequential test for interlocutory injunctions: prima facie case, irreparable injury, balance of convenience.

  • MRAO LIMITED-VERSUS- FIRST AMERICAN BANK OF KENYA LIMITED
    (2003) eKLR

    Definition of a prima facie case in civil applications.

  • PIUS KIPCHIRCHIR KAGO-VERSUS- FRANK KIMELI TENAI
    (2018) eKLR

    Meaning of irreparable injury - injury not adequately compensable in damages.

Jurisdiction invoked
Environment and Land Court Act, No. 19 of 2012

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, "Ismael Kiptoo Kiplagat v Rose J. Cherubet (Sued as the Legal Representative of the Estate of Evans Kibet Cherubet)", Case Analysis (2026). ELC OS No. E039 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5674/eng@2026-09-23

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