Ismael Kiptoo Kiplagat v Rose J. Cherubet (Sued as the Legal Representative of the Estate of Evans Kibet Cherubet)
The bottom line
#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
#Executive summary
#Key legal issues
#Jurisdiction of the ELC over a land claim against a deceased's estate
The ELC has jurisdiction because the dispute concerns ownership and occupation of land, not administration of the estate.
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.
Prima facie case for injunction
Established: the Applicant pleaded purchase, possession since 1992, and holds the original title deed; the Respondent did not dispute his occupation.
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.
Irreparable injury
Demonstrated: eviction, rent demands or demolition would render the Applicant homeless before a full hearing.
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.
Balance of convenience
Tilts in the Applicant's favour once prima facie case and irreparable injury are shown.
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.
Legal principles established
#- 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
#- 1.The Application dated 25.11.2025 allowed
- 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.Costs of the Application awarded to the Applicant, payable by the Respondent
- Jurisdiction invoked
- Environment and Land Court Act, No. 19 of 2012
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.