Tarus & 2 others (Suing as Administrators of the Estate of Elijah Kiptarus Kenei - Deceased) v Tesot & another (Sued as the Officials of Umoja Wa Wamawake Kipkeikei Women Group) (Environment and Land Case E029 of 2026) [2026] KEELC 3996 (KLR)

dependants of the estate are on L.R. No. 6614/13, which they have developed in their capacity as the beneficiaries of the estate, with permanent and semi-permanent structures, where they live with families, whose size is approximately 1/8 of an acre with clear delineation on the ground. 3. It is deposed that on or about 1/4/2026, the defendants illegally and wrongfully staked a claim on the area occupied by the said defendants, which the beneficiaries resisted as unjustified, and refused to move out of the portion, which could be detrimental to the estate of the deceased. 4. The plaintiffs depose that the defendants have no right to deal with the said land without the consent ORIGINAL COPY of the administrators of the estate, and unless restrained, the defendants are keen to unlawfully and illegally move into that suit land, which is an unjustified claim to it. 5. The plaintiffs have attached copies of the official search certificate and a grant of letters of administration as annexures marked HKT-(1) and (2). 6. The application is opposed through a replying affidavit sworn by Emily Tesot, the 1 st defendant, who is one of the officials of the defendant RULING: KITALE ELC NO. E029 OF 2025 - D.O.D. – 29/06/2026 2

page 2 of 10

organization, representing the 2 nd and 3rd defendants. 7. It is deposed that a similar dispute relating to the suit land was conclusively heard and determined in Kitale ELC No. 152 of 2007, where the defendants had sued David Kiptarus Ruto, John Bett and Harun Kollum, as per attached decree marked ET-(1), which was appealed against in Eldoret Civil Appeal No. 82 of 2020, and dismissed on 27/2/2026 as per the attached judgment marked ET-(2). 8. The defendants depose that upon dismissal, the judgment debtors and those unlawfully on the suit land were given a 90-day notice to vacate the land ORIGINAL COPY on 10/3/2026, which lapsed on 10/6/2026, as per annexure marked ET-(3) and the affidavit of service marked as ET-(4). 9. The defendants depose that the plaintiffs herein were all defence witnesses in the former suit and, being co-administrators or beneficiaries of the estate of the Later Elijah Kiptarus Kenei, are relitigating issues now already conclusively determined by a competent court, making the suit bad in law, res judicata; out to delay or obstruct a lawful decree from execution. RULING: KITALE ELC NO. E029 OF 2025 - D.O.D. – 29/06/2026 3

page 3 of 10

10. The defendants depose that the allegation that the plaintiffs are entitled to only an 1/8 share of the suit land is misleading, false, and intended to confuse the court. Further, the defendants depose that it is not true that the beneficiaries of the estate of the deceased are in occupation and/or have developments on the land; otherwise, the ones on the land are the very same unlawful purchasers: David K. Ruto, John Bett, and Harun Kollum, whom the court declared not to be innocent purchasers for value. 11. The defendants depose that the plaintiffs have withheld material facts from the court and have come to court with unclean hands to be entitled to ORIGINAL COPY the relief sought. 12. The defendants urge the court to find no prima facie case, that, with a probability of success having been established, the applicant intends to abuse or misuse the court process to frustrate and/or defeat the implementation and enforcement of a valid judgment and decree, and that it is in the interests of justice that the application dated 27/4/2026 be dismissed with costs. 13. To dispose of the application, parties were directed to file and serve written submissions by 19/5/2026. The defendants rely on written submissions dated RULING: KITALE ELC NO. E029 OF 2025 - D.O.D. – 29/06/2026 4

page 4 of 10

8/5/2026, which were filed and placed in the court file by the said date. 14. The plaintiffs have approached the court by a plaint dated 27/4/2026. They seek to be declared the sole owners of L.R. No. 6614/13 and for a permanent injunction restraining the defendants or their servants from interfering with the occupation of the suit land, or in any way extending the boundary of the land it occupies beyond 0.0461 Ha. 15. It is pleaded that the late Elijah Kiptarus Kenei used to own L.R. No. 6614/13 measuring 200.5 Ha, out of which the defendants occupy 0.0461 Ha, but are now staking a claim to 0.5 acres, which they have threatened to move into. ORIGINAL COPY 16. Such acts of the defendants are what the plaintiffs describe as unjustified or intended encroachment, yet it has their permanent and semi-permanent structures or developments. The plaintiffs rely on a grant of letters of administration and a certificate of official search as annexures marked ET-(1) and (2). 17. Other than a memorandum of appearance dated 8/5/2026, the court has not come across a statement of defence filed raising issues of res judicata, attaching copies of pleadings in the former suit, or a list of documents, or witness statements, save for the judgment and decree. RULING: KITALE ELC NO. E029 OF 2025 - D.O.D. – 29/06/2026 5

page 5 of 10

18. The defendants have, in the written submissions, termed the application herein as falling short of meeting the ingredients of a temporary injunction as defined in Nguruman Ltd -vs- Jan Bonde Neilsen & Others [2014] eKLR, and Mrao Ltd vs- First American Bank of (K) Ltd [2003] eKLR. 19. The defendants submit the suit as res judicata, as defined in Independent Electoral and Boundaries Commission -vs- Maina Kiai & Others [2017] eKLR: the court as lacking jurisdiction to entertain it as per Owners of the Motor Vessel Lillian “S” -vs- Caltex Oil (K) Ltd [1989] KLR 1, and lastly; on the ground that the ORIGINAL COPY plaintiffs as guilty of non-disclosure of material facts and as one who deserve no equitable relief as held in Bahadurali Ebrahim Shamji -vs- Al. Noor Jamal & 2 Others Civil Appeal No. 210 of 1997. 20. A party seeking temporary orders of injunction has to meet the threshold set in Giella -vs- Cassman Brown & Co. Ltd [1973] EA 358. 21. A prima facie case was described in Mrao Ltd -vsFirst American Bank (K) Ltd (supra) as established where, through the material placed before the court, a right has been breached or RULING: KITALE ELC NO. E029 OF 2025 - D.O.D. – 29/06/2026 6

page 6 of 10

threatened with breach to call for a rebuttal from the opposite side. 22. Irreparable loss or damage as per Nguruman Ltd vs- Jan Bonde Neilsen, (supra) is one which cannot be quantified monetarily; it has to be real, apparent, imminent, and not based on mere fear, apprehension, or speculation. 23. Balance of convenience is where the plaintiff will suffer in the absence of an injunction is greater than the defendant, if the injunction is not issued, and the suit is Kipchirchir ultimately Kogo dismissed. -vs- Frank has been See Kimeli Pius Tenai [2018] eKLR. 24. The plaintiffs’ suit ORIGINAL COPY termed by the defendant as res judicata in view of Kitale ELC No 152 of 2007, which ended up at Eldoret Civil Appeal No. 82 of 2020. To prove res judicata as per Independent Electoral and Boundaries Commission & Others -vs- Maina Kiai & Others [2017] eKLR, the burden is on the one alleging to show that there was a previous suit between the same parties, the title was the same, there was finality in determination of the issue, by a competent court and that the second suit is on the same issues between the same parties or parties litigating under the same title or umbrella and that RULING: KITALE ELC NO. E029 OF 2025 - D.O.D. – 29/06/2026 7

page 7 of 10

the former court was capable of determining the same issues. 25. The doctrine of res judicata is meant to bring litigation to a close and to prevent parties from engaging in endless litigation over the same subject matter. In Henderson -vs- Henderson [1843] 3 Hare 100, 67 ER 313 (Ch), the court warned that parties should not be allowed to litigate matters in instalments. 26. In John Florence Maritime Service -vs- C.S. for Transport & Infrastructure & Others [2019] eKLR, the court warned that parties should not make a facelift in their pleadings to try to vex the other party with an attempt to seek a second bite of ORIGINAL COPY the cherry after they have lost in the previous suit. 27. The defendants term the plaintiffs herein as persons who participated in the earlier suit as witnesses but not as primary parties. The decree issued on 22/1/2020 indicates that what was decreed to the defendants was 0.5 acres out of L.R. No. 6614/13 as per the boundaries given by the late Elijah Kenei. 28. The plaintiffs are now saying that the defendants are threatening to enlarge their land beyond the 0.5 acres, contrary to the decree of the court. 29. The defendants in the replying affidavit seem to be saying that they are targeting to evict the alleged RULING: KITALE ELC NO. E029 OF 2025 - D.O.D. – 29/06/2026 8

page 8 of 10

innocent purchasers, as per the decree, who are not the plaintiffs. As indicated above, the defendants' replying affidavit has not attached the pleadings and judgment of this court, for the court to determine their claim as res judicata. 30. From the notice of eviction dated 3/3/2026, read together with the decree, it is not clear if the defendants were decreed and mandated to evict any alleged illegal occupants on the suit land, which appears to be outside the 0.5 acres decreed to them. 31. The plaintiffs claim is that the defendants are occupying 0.5 acres, and yet are seeking to encroach on more land than they deserve. The ORIGINAL COPY notice dated 3/3/2026 is the basis upon which the defendants say that they are implementing and enforcing the decree. It does not comply fully with Section 152A-I of the Land Act. The court finds that the plaintiffs have established a prima facie case. 32. On irreparable loss or damage, there is undisputed evidence of imminent eviction or threatened eviction, or notice to vacate. The balance of convenience tilts in favor of maintaining the status quo until the suit is heard and determined. Such an order, however, does not stop the defendants from RULING: KITALE ELC NO. E029 OF 2025 - D.O.D. – 29/06/2026 9

page 9 of 10

continuing with the occupation of the portion of 0.5 acres decreed to them in the previous suit. The order shall last for one year only. 33. The plaintiffs are ordered to deposit Kshs. 100,000/= in court as security for costs within 14 days from the date hereof; otherwise, the interim orders shall stand vacated. 34. Orders accordingly. Ruling dated, signed and delivered, via Microsoft Teams/Open Court at Kitale on this 29th day of June 2026. In the presence of: Court Assistant - Dennis ORIGINAL COPY Mr. Karani Nyongesa for Chepkemoi for the defendant/respondent present Mr. Momanyi for plaintiff/applicant absent HON. C.K. NZILI JUDGE, ELC KITALE. RULING: KITALE ELC NO. E029 OF 2025 - D.O.D. – 29/06/2026 10

page 10 of 10