Ramkat v Ruto & 5 others

(b) An order of status quo to be maintained concerning the property known as Trans Nzoia/Milimani Settlement Scheme/197 (the suit land), pending hearing and determination of this suit. (c) Temporary injunction restraining the 1st defendant, whether by herself, her servants and or agents or other persons acting on her behalf or claiming interest through the 1st respondent from entering, trespassing, planting, erecting any structures permanent or otherwise, wasting, damaging, alienating, charging in the property known as Trans Nzoia/Milimani Settlement Scheme/197. (d) An order of restriction on the property known as Trans Nzoia/Milimani Settlement Scheme/197. 2. The grounds are set out on the face of the application and in a supporting affidavit sworn by Raymond Kiplagat Ramkat on 17/2/2025. The applicant deposes that he was allotted the suit land in 1996, following which he paid the 10% to the Settlement Fund Trustees on 13/8/1998; and the land was registered under his name as per the chief’s letter and a receipt marked RKR-1 and 2. 3. The applicant deposes that upon payment of the deposit, he took possession, obtained a letter of offer dated 27/11/1996, fenced the land and started RULING: KITALE ELC NO. E004 OF 2025 – D.O.D. – 30/07/2004 2

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subsistence farming. He attached the offer letter and photographs as annexures marked RKR-3 and 4. 4. The applicant deposes that the 1 st respondent has attempted to encroach on his land without any lawful justification and fraudulently caused the land to be registered under her name. The applicant deposes that the 2nd, 3rd and 4th respondents did not issue him with the mandatory 60 days’ notice to remedy any breach of the offer letter, nor was he served with any notice for the cancellation of the same. 5. Equally, the applicant deposes that there has been no communication from the 2nd, 3rd and 4th respondents; otherwise, the attempt by the 1st respondent to possess the land is without any colour of right. 6. The applicant deposes that the 1 st respondent has made several attempts to possess the land, which amounts to interference with his quiet possession as per a copy of a letter requesting for the survey marked as annexure RKR-5. The applicant deposes that the application is made timeously, in good faith, in the interest of justice; otherwise, if the orders sought are not granted, he shall be highly prejudiced. 7. The application is opposed by the 1 st respondent through a replying affidavit sworn on 4/4/2025 by Jane Chepchirchir Ruto. It is deposed that the 1 st RULING: KITALE ELC NO. E004 OF 2025 – D.O.D. – 30/07/2004 3

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respondent is the bona fide registered owner of the suit land, following allocation through a letter of offer by the Director of Land Adjudication and Settlement Officer and the compliance with the terms and conditions of the offer letter by paying Kshs.50,294/=, ground report and discharge of charge. She attached the title deed, letter of offer, ground report, payment receipts and a discharge as annexures marked JCR-1, 2, 3, 4 and 5. 8. The 1st respondent states that in December 2024, she accompanied the Land Adjudication officer, a land surveyor, the area chief and the OCS to the vacant suit land, wherein the boundaries and beacons were established and took possession of the land with no objection. 9. The 1st respondent avers that she also began cultivating the suit land and therefore, she has not trespassed on any person’s land. She deposes that she followed due process to acquire the suit land and there was no fraud as alleged. The 1st respondent deposes that the applicant has not met the requirements for a grant of a temporary injunction; otherwise, she stands to suffer irreparable loss and damage if the court were to issue the order sought, when she is the one in possession. RULING: KITALE ELC NO. E004 OF 2025 – D.O.D. – 30/07/2004 4

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10. From the court record, it appears that the 2 nd – 6th respondents did not file any replying affidavit to the application. 11. The applicant relies on a written submission dated 8/4/2025. Reliance is placed on Giella -vs- Cassman Brown & Co. Ltd [1973] EA 358, Unga Group PLC -vs- Maureen Wanyaga [2021] eKLR, Nguruman Ltd -vs- Jan Bonde Nielsen & Others [2014] eKLR, Francis Muriithi Ndirangu -vs- Ruth Wanjiku Nderitu [2016] eKLR, Cheptanui Soy vs- Michael Sayava & Another [2018] eKLR, and Virginia Edith Wambui -vs- Joash Ochieng Ougo [1987] eKLR. 12. The primary pleading by the plaintiff is the plaint dated 6/2/2025. He claims that after he was given a letter of offer, he complied, was allocated the suit land on 27/11/1996 and paid 10% of the purchase price on 13/8/1998, took vacant possession, erected a fence and a house and has been cultivating and planting on the land since then, until the 1 st defendant attempted to take possession or interfere with his land. 13. The plaintiff blames the 2nd, 3rd, and 4th defendants for illegally and unlawfully transferring and registering the land in the names of the 1 st defendant and RULING: KITALE ELC NO. E004 OF 2025 – D.O.D. – 30/07/2004 5

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assisting her to unlawfully acquire or take possession of his land. The plaintiff seeks: (a) Mandatory injunction for the 1st defendant to surrender the title to the 5th defendant for cancellation and transfer to him. (b) Permanent injunction. (c) Declaration that the transfer and st registration in favour of the 1 defendant is illegal, fraudulent and made in abuse of procedure. (d) Invalidation of the transfer, registration and issuance of the title. (e) Removal of the names of the 1 st defendant after the reinstatement of the offer, since the plaintiff is ready and willing to pay the arrears due to the 2nd and 3rd defendants. 14. A party seeking temporary orders of injunction has to establish a prima facie case, show that it will suffer irreparable loss and damage in the absence of a temporary injunction and lastly, demonstrate that the balance of convenience favours the issuance of such orders. 15. A prima facie was defined in Mrao Ltd -vs- First American Bank of Kenya Ltd (2003) eKLR and Moses Muhia Njoroge & Others June W. Lesatoi & Others [2014] eKLR, refers to a genuine and arguable case. It is established that, where looking at the material presented to the court or tribunal, RULING: KITALE ELC NO. E004 OF 2025 – D.O.D. – 30/07/2004 6

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properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party, as to call for an explanation or rebuttal from the other. 16. Irreparable loss or damage, on the other hand, according to Nguruman Ltd -vs- Jan Bonde Nielsen & Others [2014], is injury that is grave, actual, substantial and demonstrable such that it cannot adequately be compensated by an award of damages. Further, it is that injury that may not be measured with reasonable accuracy, interest, let alone a right to land. Perfection of the same is what makes the offeree acquire protectable rights over the land. 17. The applicant is claiming an interest arising out of an alleged allocated land. Such a cause is contractual in nature and must be determined per ordinary rules of contract interpretation. Courts do not rewrite contracts but enforce the same unless vitiated by other factors. 18. The alleged rights of the plaintiff, arising out of the allocation of land, are what he wants the court to declare if they had crystallized at the hearing of the main suit. RULING: KITALE ELC NO. E004 OF 2025 – D.O.D. – 30/07/2004 7

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19. On the other hand, the 1st defendant pleads superior rights due to possession of a certificate of title that is protected under Sections 24, 25, and 26 of the Land Registration Act. 20. Apply the foregoing principles to the instant suit, the plaintiff to demonstrate breach of his rights by the defendants, relies on a letter of offer of 27/11/1996, payment of 10% to the Settlement Fund Trustees by a receipt dated 13/8/1998, and annexures marked RKR-1 and 2. Acceptance of the offer letter and payment of the deposit within 90 days were conditions precedent. 21. Documentation of the parcel number after compliance with the two conditions by the allocating authority is missing. Between 1996 to the filing of the suit, there is no evidence that the letter of offer was perfected. A letter of offer is incapable of conferring interest in land, unless there is fulfillment of conditions stipulated therein. See Torino Enterprises Ltd -vs- Attorney General [2023] KESC 79 [KLR] (22 nd September 2023) (Judgment). 22. A letter of offer, as held in Gladys Wanjiru Ngacha vs Teresa Chepsaat & Others [2008] eKLR, is nothing more than an invitation to treat. It does not constitute a contract between the offeror and the RULING: KITALE ELC NO. E004 OF 2025 – D.O.D. – 30/07/2004 8

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offeree. It cannot be construed as prima facie evidence of ownership. In the circumstances, I find no prima facie case established. The three ingredients for injury have not been applied as separate, distinct and logical. See Nguruman Ltd -vs- Jan Bonde Nielsen (supra). If the first ingredient is not established, then the rest need not be considered. 23. In Kenya Commercial Finance Co. Ltd -vs- Afraha Education Society [20010 Vol. 1 EA 86, the court observed that the existence of a prima facie case does not permit leap-frogging by the applicant to an injunction without crossing the other hurdles in between. 24. The upshot is that I find the application lacking merits. It is dismissed with costs. Ruling dated, signed, and delivered via Microsoft Teams/Open Court at Kitale on this 30th day of July 2025. In the presence of: Court Assistant – Dennis Nafula for Lagat for plaintiff present Odhiambo for Nyairo for 1st defendant present 2nd – 6th defendants absent HON. C.K. NZILI RULING: KITALE ELC NO. E004 OF 2025 – D.O.D. – 30/07/2004 9

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JUDGE, ELC KITALE. RULING: KITALE ELC NO. E004 OF 2025 – D.O.D. – 30/07/2004 10

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