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)

5. Costs of the Application be paid by the Respondent. 6. Any other relief the Court shall deem t to grant. 2. The Application is supported by the Applicant’s Adavit sworn on 30.09.2025. He deponed that he instituted this matter by way of Originating Summons (OS) on 11.6.2021seeking a declaration that he had acquired ownership of Title Number Eldoret Municipality Block 23 (King’ong’o)/639 measuring 0.04Ha (the suit property herein). That together with the OS, he led an Application for injunction to restrain the Respondent from selling, alienating, transferring or charging the suit land pending the hearing and determination of the suit. The Applicant claims that the Respondent led her response to the application and upon being heard, the same was dismissed vide Ruling delivered on 06.10.2021. 3. The Applicant averred that at the time of delivering the Ruling, the Court had not been made aware of changes in ownership. The Applicant claims that in the course of hearing, he applied to the County Land Registrar for a Certied extract of Title and it emerged that the Respondent had in the course of proceedings, fraudulently and secretly transferred the land to herself, ostensibly, to defeat his Claim. He accused the Respondent for lack of candour in failing to disclose her dealings on the suit land during the pendency of this suit. The Applicant claims that the change in Title and ownership is prejudicial to his case and that it takes away the sub-stratum of the suit from the jurisdiction of this Honourable Court. 4. The Applicant averred that during the active prosecution of a contentious suit or proceedings in which any right to immovable property is directly or specically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceedings so as to aect the right of another party thereto under the decree or Order which may be made therein. He deponed that the of the doctrine of Lis Pendens is founded on Public Policy and Equity, and its purpose is to preserve the suit property until the suit is nally determined. The Applicant accused the Respondent of taking advantage of his failure to obtain interim Orders upon learning that a suit had been led, by transferring the Title to herself shortly after service, specically, seven (7) days after ling her response, and deliberately delayed the ling of her Submissions until after the event. 5. The Applicant asked the Court to invoke the doctrine of Lis Pendens in tandem with the provisions of Section 1A and 18 of the Civil Procedure Act, and render the said transfer subservient to his rights in this suit. He further averred that the transfer ought to be nullied and the Original Title to revert. He also asked that the Land Registrar be directed to eect the Court Order. In addition, he also prayed that this Court do make appropriate Orders for preservation of the suit property. 6. The application is opposed through the Replying Adavit of Christine Cherop, the Administratrix of the Estate of the deceased Respondent herein. She deponed that the Applicant had previously led an application dated 10.06.2021 seeking injunctive orders over the suit property, which was heard on merit and dismissed on 06.10.2021. She deponed that the ruling dismissing the application has never been reviewed, varied, set aside or appealed against and remains valid and binding. She averred that the present application seeks the same injunctive relief earlier sought and dismissed, couched in dierent terms and is thus res judicata. She added that the court is functus ocio as regards the injunction sought and lacks jurisdiction to relitigate the same. 7. The Respondent averred that during the pendency of this suit and following the dismissal of the Applicant’s application for injunction, the Respondent had lawfully complied with a Certicate of Conrmation of Grant issued in Succession Cause No. 84 of 2000, where the suit property had been listed as part of the estate of the deceased registered owner. She explained that under the said Certicate of Conrmation of Grant, the property was transmitted to ten (10) children of the deceased registered https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5614/eng@2026-09-24 2

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owner. She claims that the transmission was done lawfully, procedurally and in compliance with a valid court order issued by a court of competent jurisdiction. She contended that the deceased respondent, Florence Chepkor, could not lawfully refuse or delay compliance with the succession proceedings as to do so would amount to contempt of court orders. 8. The Respondent averred that the order seeking to declare the transmission null and void is in eect, a mandatory order seeking to reverse completed acts and alter substantive rights, which cannot be granted at the interim stage as it would determine the substantive issues in the OS. She claimed that the Applicant had not demonstrated any exceptional circumstances to warrant the grant of mandatory orders at this interim stage. She termed the Applicant’s Motion an abuse of the court process, intended to circumvent the earlier ruling of this court and unlawfully restrain the beneciaries who are not parties to this suit. She also accused the Applicant of using interlocutory proceedings to defeat and undermine lawful succession proceedings, which action is untenable in law. 9. The Respondent averred that the balance of convenience does not lie in favour of granting the orders sought as the Deceased’s estate has already been distributed pursuant to the conrmed grant. She alleged that the Applicant will suer no irreparable loss if the application is dismissed as the substantive OS remains pending for determination on merit. That on the contrary, the orders sought would occasion grave prejudice and injustice to innocent beneciaries and oend the principle of nality of litigation. She therefore asked that the Applicant’s Motion be dismissed with costs. Submissions: 10. The court directed that the present application be canvassed by way of written submissions. The Applicant complied and led his written submissions dated 10th March, 2026. The Respondent equally complied and led her submissions which are dated 29.06.2026. Analysis and Determination: 11. I have considered the application, the response led thereto as well as submissions led on behalf of the parties, and considered the authorities relied on. To my mind, the following issues arise for determination:i. Whether the present application is res judicata; ii. Whether the Respondent’s actions ran afoul of the doctrine of lis pendens; iii. Whether the Applicant is entitled to an order of injunction; iv. Whether the Court should cancel the transfer already registered in favour of Florence Chepkor; v. Who shall bear the Costs of the application? a. Whether the present application is res judicata; 12. The preliminary issues for determination is whether the application is res judicata and an abuse of the court process. I note from the record that the Applicant previously led an interlocutory application dated 10.6.2021 seeking a temporary injunction restraining the Respondent from disposing o the suit property or in any way changing its ownership pending the hearing and determination of the present suit. 13. The initial application was heard on merit and was eventually dismissed with costs in a ruling delivered on 06.10.2021 by Honorable Justice E. Obaga. For this reason, the Respondent claims that the present https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5614/eng@2026-09-24 3

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application is res judicata, and she accused the Applicant of attempting to litigate the same issue of an interim injunction which was already conclusively determined in 2021. 14. The doctrine of Res judicature is founded on Section 7 of Civil Procedure Act, which provides as follows:7. Res judicata No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and nally decided by such court. Explanation. (1)—The expression “former suit” means a suit which has been decided before the suit in question whether or not it was instituted before it. Explanation. (2)—For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court. Explanation. (3)—The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other. Explanation. (4)—Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and in substantially in issue in such suit. Explanation. (5)—Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused. Explanation. (6)—Where persons litigate bona de in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. 15. Under Section 7 of the Civil Procedure Act, Cap 21, a court cannot try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit, between the same parties and litigated under the same title, in a court competent to try such previous suit or application. For res judicata to be invoked in a civil matter the following elements must be demonstrated:a. There is a former judgment or order which was nal; b. The judgment or order was on merit; c. The judgment or order was rendered by a court having jurisdiction over the subject matter and the parties; and d. There must be between the rst and the second action identical parties, subject matter and cause of action. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5614/eng@2026-09-24 4

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16. As to whether the doctrine of res judicata is applicable to interlocutory applications, in Uhuru Highway Development Ltd vs Central Bank of Kenya & another (Civil Appeal 36 of 1996) (1996) KECA 102 (KLR), the Court held as follows:“ If Mr. Sharma’s and Mr. Rebello’s arguments to the eect that the doctrine of res judicata applies only to suits concluded after a hearing on issues litigated upon and not to interlocutory applications, an impossible and intolerable situation would arise. A party who fails to stop a statutory sale would go from judge to judge until he may get orders suitable to him. The doctrine of res judicata would be far too limited. It should not be so and must be allowed to do be so. We have no hesitation whatsoever in saying that the general principles of res judicata cannot be limited by section 7 of the Civil Procedure Act and that the section (Section 7) is not exhaustive… … there must be an end to applications of similar nature; that is to say further, wider principles of res judicata apply to applications within the suit. If that was not the intention, we can imagine that the courts could and would be inundated by new applications led after the original one was dismissed. There must be an end to interlocutory applications as much as there ought to be an end to litigation. It is this precise problem that section 89 of our Civil Procedure Act caters for.” 17. In the present case, the Applicant himself has admitted that he had previously sought injunctive orders from this court in this very suit, and that his said application was dismissed upon being heard on merit. The matter having been led inside this suit, there is no doubt that the requirement of identical parties and subject matter have been met. Additionally, since the jurisdiction of this court has all along not been disputed, that requirement is also met. Furthermore, the ruling has indeed not been varied, reviewed set aside or appealed. 18. However, the issue of similarity of cause of action is not present. Notably, the initial application was made based on the led suit to preserve the suit property pending hearing and determination of the suit, and arose from the eviction of the Applicant from the suit property. On the other hand, the cause of action in this application is the discovery that the Deceased Respondent transferred the suit property from the name of the Deceased registered owner to her name. Evidently, the causes of action which led to the ling of the two applications are dierent. As a result, since this last ingredient of res judicata is absent, the doctrine cannot be applied as to bring an end to the Applicant’s present application. 19. Moreover, Kenyan law recognizes specic exceptions and limitations to the doctrine of res judicata, where re-litigation of matters already determined is permitted to prevent a miscarriage of justice. The Supreme Court of Kenya in John Florence Maritime Services Ltd & another vs Cabinet Secretary Transport & Infrastructure & 3 others (Petition 17 of 2015) (2021) KESC 39 (KLR), cited the decision of the Court of Appeal in Trinidad and Tobago in the case of Endell Thomas vs The Attorney General Privy Council Appeal No 20 of 1989 1990 (UKPC) 49 in reaching the following nding:“ 75. The court however made an exception to the application of the principle of res judicata to where the applicant can demonstrate special circumstances warranting exemption. They held as follows: ‘The classic statement on the subject is contained in the following passage from the Judgment of Wigram VC in Henderson v Henderson (1843) 3 Hare 100 at page 115: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5614/eng@2026-09-24 5

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‘… where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon the court was actually required by the parties to form an opinion and pronounce a Judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable, diligence, might have brought forward at the time. The principles enunciated in that dictum have been restated on numerous occasions… It is clear from these authorities that when a plainti seeks to litigate the same issue a second time relying on fresh propositions in law he can only do so if he can demonstrate that special circumstances exist for displacing the normal rules…’.” 20. Noting that the Applicant had not challenged the ruling delivered on 06.10.2021, it is evident that he had accepted it and opted to instead pursue the hearing of the suit on merits. That being the case, the present application would not have been necessary if the Respondent had not orchestrated the transfer of the suit property before the nal determination of the suit herein. It is evident therefore that the Respondent herein seeks to hide behind the doctrine of res judicata despite clearly having transferred the suit property without the court’s knowledge. These circumstances, to me, demonstrate special circumstances sucient to warrant the displacement of the normal rules as regards the doctrine of res judicata. 21. I am then reminded of the words of Justice Erick Ogola in Theresia Runji & 3 others vs National Land Commission; Miritini Free Port Limited (Interested Party) (2020) KEHC 3822 (KLR), where he explained that:“ I have already found that the principle of res judicata is not available to the Applicant in this matter. However, in my view, even if that principle was available, it would not be used to shield what may appear to be illegal or un-procedural transactions. … the Applicant cannot claim res judicata as a sword…” 22. This is exactly the position of the Respondent herein, who now seek to employ the doctrine of res judicata so as to shield or hide their conduct in this suit. Evidently, even if the application was res judicata, which this court has found it is not, the doctrine would still not be available to the Respondent as a defence to the application. b. Whether the Respondent’s actions ran afoul of the doctrine of lis pendens; 23. The Applicant’s main complaint before this court presently is that the Respondent secretly and fraudulently orchestrated the change of ownership of the suit property herein during the pendency of the present suit. In particular, the Applicant accuses the deceased Respondent of transferring the suit property from the deceased registered proprietor’s name to her own name. The Plainti therefore faults the Respondent for running afoul of the doctrine of lis pendens. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5614/eng@2026-09-24 6

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24. The decision of the Court of Appeal in Naftali Ruthi Kinyua v Patrick Thuita Gachure & another [2015] KECA 911 (KLR) is instructive on the application of the doctrine of lis pendens. In the said case, the Court held that:“ Black’s Law Dictionary 9th edition, denes lis pendens as the jurisdictional, power or control acquired by a court over property while a legal action is pending. Lis pendens is a common law principle that was enacted into statute by section 52 Indian Transfer of Property Act (ITPA)-now repealed. While addressing the purpose of the principle of lis pendens, Turner L. J, in Bellamy vs Sabine [1857] 1 De J 566 held as follows:‘It is a doctrine common to the courts both of law and equity, and rests, as I apprehend, upon this jurisdiction, that it would plainly be impossible that any action or suit could be brought to a successful determination, if alienation pendent lite were permitted to prevail. The Plainti would be liable in every case to be defeated by the Defendants alienating before the judgment or decree, and would be driven to commence his proceedings de novo, subject again to defeat by the same course of proceedings.’ In the case of Mawji vs US International University & another [1976] KLR 185, Madan, J.A. stated thus:‘The doctrine of lis pendens under section 52 of TPA is a substantive law of general application. Apart from being in the statute, it is a doctrine equally recognized by common law. It is based on expedience of the court. The doctrine of lis pendens is necessary for nal adjudication of the matters before the court and in the general interests of public policy and good eective administration of justice. It therefore overrides, section 23 of the RTA and prohibits a party from giving to others pending the litigation rights to the property in dispute so as to prejudice the other…’ In the same case at page it was observed inter alia that:‘Every man is presumed to be attentive to what passes in the courts of justice of the State or sovereignty where he resides. Therefore, purchase made of a property actually in litigation pendete lite for a valuable consideration and without any express or implied notice in point of fact aects the purchaser in the same manner as if he had notice and will accordingly be bound by the judgment or decree in the suit.’ See also the considered views of Nambuye J, (as she then was) in Bernadette Wangare Muriu -vs- National Social Security Fund Board of Trustees & 2 Others [2012] eKLR. The necessity of the doctrine of lis pendens in the adjudication of land matters pending before the court cannot be gainsaid, particularly for its expediency, as well as the orderly and ecacious disposal of justice. Having said that, with the repeal of section 52 of the ITPA by the Land Registration Act (LRA) Number 3 of 2013, the question arises as to whether the doctrine remains applicable to the circumstances of the present case. We consider that its applicability must be considered in the light of Section 107 (1) of the LRA which provides the saving and transitional provisions of this Act, and which stipulates, ‘Unless the contrary is specically provided for in this Act, any right, interest, title, power, or obligation acquired, accrued, established, coming into force or exercisable before the commencement of this Act shall continue to be governed by the law applicable to it immediately prior to the commencement of this Act.’ https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5614/eng@2026-09-24 7

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The eect of this provision is to allow for the continued applicability of the rights and interests ensuing from legislation that governed titles of properties established prior to the repeal of such legislation. Given that the concerned property involved land eligible for registration under the Registration of Titles Act (now repealed), having regard to section 107 (1) of the LRA, it is evident the rights owing from section 52 of the ITPA including those under doctrine of lis pendens would remain applicable to the circumstances of this case.” 25. The Court of Appeal went on to explain that under Section 3(1) of the Judicature Act Cap 8 the jurisdiction of the Courts shall be exercised in conformity with the Constitution, written law and the substance of the common law, the doctrines of equity and the statutes of general application in force in England on the 12th August, 1897, and the procedure and practice observed in courts of justice in England at that date. The doctrine of lis pendens, being a common law principle already in force as at the relevant date, remains applicable in our jurisdiction. 26. Similarly, in Shivji Naran Virji vs Ogla Jemeli Barng’etuny (2021) KEELC 427 (KLR), the court held that:“ (b) 27. The lis pendens doctrine was originally a doctrine of common application to both the courts of law and equity. It rested on the principle that every suit would simply be defeated once property was disposed of, and the claimant forced to bring a new suit against the new owner only for the latter to dispose of the new suit and the claimant to start all over again: see Turner LJ in Bellamy v Sabine [1857] 1 De J 566. That were it not for lis pendens doctrine being the guiding factor in immovable litigations, no suit in a case where the subject matter is constantly being transferred would ever be successfully prosecuted. That as I understand it, the doctrine of lis pendens is based on justice, equity, expediency and good conscience. It is based on sound policy. The concept of the rule of law anticipates ne and fair adjudication. The law does not allow or encourage litigants to give rights which are still under dispute to others who are not litigants and in the process prejudice fellow litigants. Thus, according to the 10th edition of G. C. Bharuka’s treatise Mulla on the Indian Transfer of Property Act, the doctrine is intended to avoid conicts between parties to a suit and innocent purchasers and also to stop those who want to circumvent the court’s jurisdiction by removing the subject matter from the court’s grasp. The aim is accomplished by enforcing the decree against any person who acquires property the subject of litigation: see Bharuka (supra). That from the foregoing passages, the doctrine of lis pendens can be regarded as one that serves to stop the alienation of land subject to a civil suit by third parties during the pendency of litigation. It serves to preserve the subject matter of a suit pending the determination of the rights of the parties.” Properly understood therefore, the doctrine of lis pendens kicks in from the moment proceedings are instituted, until the nal determination of the matter by the court. In addition, the doctrine is enforced not only against the parties, but also aects any person who acquires immovable property that is subject of a litigation. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5614/eng@2026-09-24 8

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28. The mere ling of a case, however, does not automatically trigger the doctrine of lis pendens, as was expounded in Co-operative Bank of Kenya Limited vs Patrick Kangethe Njuguna & 5 others (2017) eKLR, where the Court of Appeal held that:“ In Kenya, however, no such measures have been legislated regarding lis pendens. As such, the practical approach remains that mere institution of suit does not trigger the doctrine. Rather, it is upon the active prosecution of that suit that the doctrine automatically sets in. Consequently, the contention that mere ling of suit operates as an automatic stay of dealings, fails.” 29. The present suit was commenced by way of OS dated 10.06.2021, which was led in this court on 11.06.2021. Contemporaneously, the Applicant led a Notice of Motion Application of the same date, seeking a temporary injunction against the Respondent pending the hearing and determination of the suit. From an Adavit of Service sworn on 18.06.2021 by Vincent Ogutu, a licensed Court Process Server, the Deceased Respondent, Florence Chepkor, was served with the pleadings in this suit on 18.06.2021. 30. The Deceased Respondent entered appearance through a Memorandum of Appearance dated 18.06.2021 and led in court on 21.06.2021. She equally led Grounds of Opposition to the application for injunction, as well as swore and led a Replying Adavit dated 18.06.2021 opposing the same. However, from the Copy of the Extract of the Register annexed to the Applicant’s Supporting Adavit herein, by the time the Deceased Respondent led her written submissions on 20.09.2021 and her Replying Adavit to the OS on 27.10.2021, she had already transferred the suit property to herself on 08.09.2021, to hold in trust for the beneciaries of the estate of the Deceased registered owner. 31. There is no doubt that at the time of the transfer by way of transmission, the suit herein was being actively prosecuted. As already indicated, at the time, the Applicant herein was actively prosecuting his application for a temporary injunction. The mere fact that the application for injunction was dismissed did not automatically grant the Deceased Respondent authority to transfer the land either to herself or the beneciaries of the estate. 32. This is more so because the transfer was done even before the ruling dismissing the application for injunction was delivered. Clearly, therefore, the Deceased Respondent’s intention as can be discerned from her actions was that she wanted to remove the suit property from the reach of this court and make it dicult for the Applicant to enforce any order of injunction in the event one had been issued. The Respondent’s argument that the transfer was done lawfully upon dismissal of the application for injunction is not only misleading, but also in bad faith and points to a lack of candour by the current Respondent as well as the Deceased Respondent. 33. The Respondent herein further claims that the Deceased Respondent was acting in obedience of a court order issued by the Succession Court, and that she risked being in contempt if she did not abide by it and transfer the land to the beneciaries. Nothing has been placed before this court to show that the deceased Respondent was cited by any of the beneciaries or even the court for contempt in refusing to transfer the suit land to them. 34. And even if this had been done, all the Deceased Respondent would have to do was to inform the court that the suit property was subject of proceedings in this court and she would have been cleared of any such citation. Instead, the Deceased Respondent went on to transfer the land to herself in total disregard of the present suit and of the competing interests being litigated herein. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5614/eng@2026-09-24 9

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35. It is also the Respondent’s claim that the suit property was transferred by way of transmission under a Certicate of Conrmation of Grant issued in Succession Cause No. 84 of 2000. The Respondent has annexed the said Certicate of Conrmation of Grant issued on 17.05.2021. It indeed lists the suit property herein amongst the properties of the late Apollo Ohanga Mbanda, and indicates that it was to be shared equally amongst ten (10) individuals. 36. Nevertheless, the Deceased Respondent had been sued in her capacity as the Administratrix of the deceased registered owner, and the record has demonstrated that she was aware of the existence of the present suit. The validity of the Certicate of Conrmation of grant and the jurisdiction of the court that issued it is not in question. What is being questioned is her apparent failre to abide by the doctrine of lis pendens, to preserve the suit property pending the hearing and determination of the suit. And bearing in mind the foregoing deliberations, I do indeed nd that the actions of the Deceased Respondent herein did run afoul of the doctrine of lis pendens. c. Whether the Applicant is entitled to an order of injunction; 37. One of the main prayers in the Applicant’s Motion is for grant of an order of injunction pending the hearing of the suit herein. The injunctive relief sought by the Applicant herein is meant to restrain the Respondent from further sub-dividing, transferring, alienating, disposing of, damaging, destroying, changing the structure thereof, parting with possession or diminishing the value or in any other way dealing with the suit property. 38. A similar application had indeed been heard by Obaga J. and he delivered his ruling on 06.10.2021, where he made the following ndings:- 39. “ 17. I have carefully examined the materials placed before me in light of the three cases cited hereinabove. The Applicants claim to have entered the suit property in 1998. Contrary to the Applicant’s allegations, the Respondent has annexed google maps which show that the suit property was fallow as from 2010 upto 2020 when a new structure was put on the suit property. In the circumstances, I nd that the Applicant has not demonstrated that he has a prima facie case with likelihood of success. 18. The Applicant has already been evicted from the suit property. As the Applicant concedes, it is the Respondent who is rmly in the control of the suit property. If the Applicant nally convinces the court that he had acquired the suit property by way of adverse possession, he will always get the land and by any chance if the Respondent would have sold it, its value will be ascertained and the Applicant will be compensated. The purpose of an injunction is to restrain what has not happened but it cannot be sought where the thing sought to be restrained has already happened as in this case where the Applicant has already been evicted.” Even in this case where the Applicant has submitted a second application for an interlocutory injunction, the principles for grant of an interlocutory injunction are still those stated in the celebrated case of Giella vs Cassman Brown & Co. Ltd (1973) EA 358. Firstly, an Applicant must demonstrate that he has a Prima facie case with a probability of success. Secondly, an injunction will not be granted unless the Applicant will suer damage which will not be compensated in damages. Thirdly, if the court is in doubt, it will decide the application on a balance of convenience. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5614/eng@2026-09-24 10

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40. At the time of the initial ruling on injunction delivered on 06.10.2021, the court evaluated the Applicant’s case as against the three conditions outlined above, and found it lacking in merit. The court, however, did not know at the time of making its ruling that the land had already been transferred to the deceased Respondent, despite the fact she was fully aware of the existence of this suit. This court has not been informed that the circumstances have changed as regards the current possession and/ or occupation of the land. I am therefore not convinced that an examination of the Applicant’s case would lead to a dierent nding on whether he has met all the requirements for an injunction set out in the Giella vs Cassman Brown Case (Supra). 41. However, the court is not blind to the fact that if no order is issued to preserve the suit property, there is a possibility that the Respondent may further alienate the land to the Applicant’s detriment. It is well known that the governing law on injunctions is Order 40 of the Civil Procedure Rules, which at Ruel 1 provides as follows:1. 42. Cases in which temporary injunction may be granted [Order 40, rule 1] Where in any suit it is proved by adavit or otherwise— (a) that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or (b) that the defendant threatens or intends to remove or dispose of his property in circumstances aording reasonable probability that the plainti will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks t until the disposal of the suit or until further orders. While the Giella vs Cassman Brown Case (Supra) outlines the principles to be applied by courts in determining an application for an interlocutory injunction, the only concern under Order 40 Rule 1 is that the order must be necessary to preserve the property in dispute where it is in danger of being wasted, damaged or being alienated by any party to the suit. That danger is not just an abstract concept in this suit, it has become a reality. As a result, I nd that it is necessary to issue the order of injunction sought to preserve the suit property and prevent any further alienation or disposal thereof pending hearing and determination of this suit. d. Whether the Court should cancel the transfer already registered in favour of Florence Chepkor; 43. Beside the prayer for an injunction, the Applicant also asked this court to cancel the transfer and subsequent registration in the Respondent’s names made on 8/9/2021 and revert the Title to the Estate of the Deceased for purposes of this suit. The court has also been asked to declare the transfer of the suit land made on 28/6/2021 from the Estate of Apollo Ohanga Mbanda to the Respondent Florence Chepkor null and void. 44. Despite acknowledging that the present set of circumstances were only brought about by the Respondent’s actions, I still hold the view that cancelling a title at this stage would not be appropriate. While it is true that the matter has proceeded for hearing of the Applicant’s case, the suit is not decided yet and this application is still considered an interlocutory or interim application. As a result, unless there are special circumstances, an application such as this one ordinarily is meant to address preliminary, urgent matters and preserve the status quo without determining the ultimate rights of the parties and the merits of the main suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5614/eng@2026-09-24 11

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45. 46. In any event, since this is a claim for adverse possession, under the law, a change in ownership of the subject land does not aect an adverse possessor’s rights to it. In other words, a transfer of the title to a third or subsequent party does not defeat a claim for adverse possession that has already matured. The Court of Appeal held as much in Peter Gichuki Wanjohi vs Juliah Mumbi Muturi (2021) KECA 1049 (KLR), where it was stated that:“ 13. In Peter Thuo Kairu v Kuria Gacheru [1988] 2 KAR 111 this Court held that a claim for adverse possession subsists not only against the present holders but also their predecessors in title. The appellant and his grandmother occupied the suit property way back in 1973 and remained in exclusive possession, openly and without any interruption until 2013 when he led the suit. 14. Likewise, in Githu v Ndeete [1984] KLR 776 [1986], this Court held that “the mere change of ownership of land which is occupied by another person under adverse possession does not interrupt such person’s adverse possession.” That being the law, we do not agree with the learned judge that to sustain a claim for adverse possession, the respondent had to be sued as an administrator of the deceased’s estate. Under the doctrine of adverse possession, a claimant’s claim to the land runs against the title and not necessarily against the current holder of the title. Whether the respondent is an administrator of her deceased person’s estate or not, the critical factor that must be demonstrated by a claimant is that he has been in adverse possession of the suit property for a period exceeding twelve years.” The change in ownership of the suit land during the pendency of this suit is deplorable and contrary to the lis pendens doctrine. Fortunately, for the Applicant, it does not aect his claim, for if he does establish the elements of adverse possession, he will still be able to enforce the order from whoever will be holding the land at the time. Additionally, the issuance of the injunction herein should serve as a sucient safeguard and protection against further alienation, hence the land is within reach of the Applicant herein should he succeed. Needless to say that the order of cancellation of title and the transfer as sought by the Applicant herein cannot issue. e. Who shall bear the Costs of the application? 47. The general rule on Costs under Section 27(1) of the Civil Procedure Rules is that costs follow the event unless the court directs otherwise. 48. In this case, the Applicant’s present application is partially merited. I have also pointed out that the same would not have been necessary had it not been for the clandestine transfer of the land by the Deceased Respondent into her name. Bearing the above in mind, it is the nding of this court that the Applicant is well and properly entitled to the costs of the present application. Orders:49. In view of the foregoing, it is the nding of this court that the Notice of Motion Application dated 30th June, 2025 partially succeeds. The following orders hereby issue in determination thereof:a. 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 https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5614/eng@2026-09-24 12

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Number Eldoret Municipality Block 23 (King’ong’o)/639 pending hearing the hearing and determination of this suit. b. 50. The Respondent shall bear the costs of this application. It is so ordered. DATED, SIGNED AND DELIVERED AT ELDORET THIS 24TH DAY OF SEPTEMBER, 2026. HON. C. K. YANO JUDGE Ruling delivered in the virtual presence of:Ms. Keya for Applicant. Ms. Munyua for Respondent. Court Assistant - Laban https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5614/eng@2026-09-24 13

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