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

Plaintiff’s use, possession, ownership and occupation of that parcel of land known as LR.NO.KARUNA/SOSIANI BLOCK 8 (USWO)/286 measuring 4.064 Hectares pending the hearing of this Application inter-parties. c. THAT there be temporary Orders of Injunction restraining the Defendant/Respondent her herself, 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 that parcel of land known as LR.NO.KARUNA/SOSIANI BLOCK 8 (USWO)/286 measuring 4.064 Hectares pending the hearing and determination of the main suit herein. d. THAT costs of this Application be provided for. 2. The grounds in support of the above-mentioned prayers are contained in the body of the present suit as well as the Supporting Affidavit therein and can be summarised as follows; i) The Applicant herein did acquire possession and use of property known as LR.NO.KARUNA/SOSIANI BLOCK 8 (USWO)/286 measuring 4.064 Hectares (hereinafter referred to as “the suit property”) by way of a purchase in the years between 1992 and 1996 from the deceased EVANS KIBET CHERUBET who is the Respondent. ii) The Applicant has been in occupation and use of the suit property for a period of over twelve years (12) years since the time of entry without any interruption by the Respondent. iii) However, upon the demise of EVANS KIBET CHERUBET, his Estate being represented by the Defendant herein did obtain Letters of Administration and a Confirmed Grant ELC OS E039 OF 2025 RULING 2

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over the suit property without disclosing the Applicant’s interest. iv) Consequently, the Respondent herein is threatening to evict the Applicant out of the suit property and interfere with his ownership rights and/or occupation and/or use of the same. v) The Applicant therefore asked this Court to issue the Orders sought in the present Application to preserve the suit property pending the hearing and determination of the substantive Originating Summons filed by the Applicant. 3. The present application was duly served on the Respondent who did oppose the same through a Replying Affidavit dated 06.02.2026. 4. The Respondent did plead the following facts in the Replying Affidavit in response to the present Application; i) ii) The Respondent did admit being the administrator of the Estate of EVANS KIBET CHEBURET through the proceeding known as ELDORET HIGH COURT SUCCESSION NO. E164 OF 2004 and subsequently the beneficiary of the suit property before the Court. The Respondent did plead that the Originating Summons which was the foundation pleading before the Court had not been signed by either the Advocate on record and/or the Applicant herein. iii) In essence, the present Application was not supported by a lawful and/or legal Originating Summons to warrant consideration by the Court. iv) The Respondent did further plead that the suit property before the Court did belong to a deceased person and therefore any issue as to who are the lawful beneficiaries ELC OS E039 OF 2025 RULING 3

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of the same ought to be heard and determined by the Family Court and not this Court. v) The Respondent did aver that the Succession proceedings relating to the registered owner EVANS KIBET CHERUBET were still on going and the general public had been notified of the same through the Kenya Gazette No. 8699 published on the 05.11.2024. vi) Despite the publication of the Succession proceedings relating to the late EVANS KIBET CHERUBET in the Kenya Gazette on the 05.11.2024, the Applicant did not file any Letter of Objection to declare his interest over the suit property to the Administrator thereof. vii) The Respondent did deny the allegation that the Applicant herein had purchased the suit property from the late EVANS KIBET CHERUBET in the years 1992 to 1996 and no lawful Land Control Board Consent was procured to sanction the said transaction. viii) The Respondent did plead that the Applicant’s ownership rights had since been overtaken by events since it had been twenty-three (23) years since EVANS KIBET CHERUBET had passed away and the Applicant has never taken any action to enforce the purported Sale over the suit property. ix) The Respondent did state that if the Applicant was indeed on the suit property, then his occupation was with the consent of the late EVANS KIBET CERUBET and was terminated upon his demise. x) The Respondent therefore asked that the present Application to be dismissed with costs. ELC OS E039 OF 2025 RULING 4

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5. The Replying Affidavit dated 06.02.2026 was duly served on the Applicant who did file a Supplementary Affidavit dated 03.03.2026 in response. 6. In the Supplementary Affidavit dated 03.03.2026, the Applicant did respond to the facts pleaded in the Replying Affidavit dated 06.02.2026 as follows; i) The Applicant did state that the Originating Summons dated 25.11.2025 were indeed signed by an Advocate and the Applicant hence was properly before the Court. ii) The Applicant did further plead that he was not aware of the Succession proceedings relating to the late EVANS KIBET CHERUBET until October 2025 when the Respondent did demand a sum of Kenya Shillings Seven Hundred and Fifty Thousand (KShs.750,000/-) annual rent over the suit property as the Administrator. iii) The Applicant did aver that the only available remedy for him to be recognised as the lawful owner of the suit property was through a Claim of Adverse possession and the period of twelve (12) years within he could file a suit to reclaim the suit property had since lapsed. iv) The Applicant was of the view that since the Respondent had acknowledged his occupation on the suit property was since the year 2010, then a period of twelve (12) years has since passed without his occupation and/or use of the same being interfered with by the Respondent. v) The Applicant did deny the allegation that the dispute herein ought to have been heard and determined before the Succession proceedings relating to the late EVANS KIBET CHERUBET. vi) The Applicant did state that the dispute before the Court was the ownership of the suit property between the late ELC OS E039 OF 2025 RULING 5

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EVANS KIBET CHERUBET and himself and not how the same should be administered and/or handled as a liability of the Estate. vii) In essence, the Applicant did reiterate that the present Court does have jurisdiction to hear and determine the present Application and Originating Summons herein. 7. In addition to the Supplementary Affidavit dated 03.03.2026, the Applicant did seek leave to file a Further Supplementary Affidavit which leave was duly granted. 8. The Applicant then did proceed to file a Further Supplementary Affidavit dated 16.03.2026 in which the following facts were pleaded; i) In confirmation of the allegation that the late EVANS KIBET CHERUBET had sold the suit property to the Applicant, a Copy of the Title Deed of the suit property dated 14.01.1993 was duly presented before the Court. ii) The Applicant did plead that the actions by the Respondent to declare that the Title Deed to the suit property had been lost and proceed to transmit the same to herself yet knowing very well that the original title deed was with the Applicant was in bad faith and malicious. iii) The Applicant did plead that a letter dated 11.03.2026 was indeed authored objecting to the issuance of a provisional title keeping in mind that the original title deed was in his possession. iv) Consequently, the Applicant did state that any actions by the Respondent to process another title to the suit property was an effort to defeat the Originating Summons pending before this Court. ELC OS E039 OF 2025 RULING 6

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v) 9. In conclusion, the Applicant did seek this Court to grant the Orders sought in the present Application. Upon the filing of the Further Supplementary Affidavit dated 16.03.2026, the Court did direct that the present Application be heard by way of written submissions. 10. The Applicant did file his submissions dated 06.05.2026 in support of the present Application while the Respondent did file her submissions dated 09.06.2026. 11. The Court has indeed perused the present Application, the Replying Affidavit thereof, the Supplementary Affidavit, the Further Supplementary Affidavit and submissions by both parties and identifies the following issues for determination; ISSUE NO.1- WHO IS THE REGISTERED OWNER OF THE SUIT PROPERTY? ISSUE NO.2- WHETHER OR NOT THE COURT HAS JURISDICTION TO HEAR AND DETERMINE THE PRESENT APPLICATION? ISSUE NO.3- DOES THE PRESENT APPLICATION SATISFY THE INGREDIENTS OF GRANTING A TEMPORARY INJUNCTION? ISSUE NO. 4- IS THE PRESENT APPLICATION MERITED OR NOT? ISSUE NO.5- WHO BEARS THE COSTS OF THE PRESENT APPLICATION? 12. The Court having identified the above-mentioned issues for determination, the same will now be discussed as provided below. ISSUE NO.1- WHO IS THE REGISTERED OWNER OF THE SUIT PROPERTY? ELC OS E039 OF 2025 RULING 7

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13. The first issue for determination is to establish the legal ownership of the suit property before the Court. 14. According to the Applicant, the suit property is registered in the name of one EVANS KIBET CHERUBET. 15. The Applicant nevertheless admits that the registered owner known as EVANS KIBET CHERUBET did indeed rest before the suit property was transferred to him. 16. Be that as it may, the Applicant did produce a copy of the Title Deed of the suit property in the name of EVANS KIBET CHERUBET dated 14.01.1993 which was handed over to him by EVANS KIBET CHERUBET upon purchase of the same. 17. In essence, the Applicant did plead and submit that the suit property was the asset of the late EVANS KIBET CHERUBET. 18. The Respondent on the other hand who is the Administrator of the Estate of EVANS KIBET CHERUBET did confirm that the suit property was registered in the name of the late EVANS KIBET CHERUBET. 19. The Respondent did plead in the Replying Affidavit dated 06.02.2026 that the suit property was an asset in the proceedings known as ELDORET HIGH COURT SUCCESSION CAUSE NO. E164 OF 2004 and she was the beneficiary of the said proceedings thereof. 20. Based on these two positions taken by the Applicant and the Respondent, it is clear that the suit property herein is the asset of EVANS KIBET CHERUBET as indicated in the Title Deed issued on the 14.01.1993. ELC OS E039 OF 2025 RULING 8

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21. As such, this Court hereby makes a finding that the lawful owner of the suit property is the late EVANS KIBET CHERUBET as indicated in the Title Deed issued on the 14.01.1993. ISSUE NO.2- WHETHER OR NOT THE COURT HAS JURISDICTION TO HEAR AND DETERMINE THE PRESENT APPLICATION? 22. The second issue for determination is whether this Court has jurisdiction to hear and determine both the present Application and/or the pending Originating Summons before it. 23. According to the Respondent’s Replying Affidavit dated 06.02.2026, it was pleaded that this Court does not have jurisdiction to hear and determine both the present Application and/or the pending Originating Summons as the suit property did belong to a deceased person. 24. The Respondent did plead and submit that the correct forum for the determination of the Applicant’s rights over the suit property would be the High Court wish is couched with the appropriate jurisdiction to handle succession matters. 25. The Respondent did further plead and submit that despite the publication of the proceedings known as ELDORET HIGH COURT SUCCESSION NO. E164 OF 2004 being published on the 05.11.2004, the Applicant herein did not make any steps to register his interest to the Estate of the late EVANS KIBET CHERUBET as required by the Law of Succession. 26. Consequently, the Respondent did plead that the Applicant herein could not institute the pending Originating Summons and/or the present Application as the suit property was already before the High Court for purposes of administration. ELC OS E039 OF 2025 RULING 9

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27. It is true that indeed the registered owner of the suit property known as EVANS KIBET CHERUBET did pass away on the 13.12.2001 as contained in the Gazette Notice dated 05.11.2004. 28. The purpose of the Gazette Notice dated 05.11.2004 was to inform the general public of the institution of the proceedings known as ELDORET HIGH COURT SUCCESSION CAUSE NO.164 OF 2004. 29. The Gazette Notice dated 05.11.2004 did further identify the Defendant herein to be the person to be appointed as the Administrator of the Estate of the late EVANS KIBET CHERUBET. 30. The Respondent in the Replying Affidavit dated 06.02.2026 did not annex any other documents that relate to the administration and/or distribution of the suit property through the proceedings known as ELDORET HIGH COURT SUCCESSION CAUSE NO.164 OF 2004. 31. The Applicant on the other hand did plead that although the proceedings known as ELDORET HIGH COURT SUCCESSION CAUSE NO.164 OF 2004 was in existence, the suit property herein had not yet vested or transmitted to the name of the Respondent. 32. In essence, the Applicant did plead and submit that the ownership of the suit property could be challenged through other proceedings other than the succession cause before the High Court at Eldoret. 33. The Applicant did specifically plead in the Supplementary Affidavit and the Further Supplementary Affidavit that the rights being sought are those of a purchaser’s interest based on a purchase. ELC OS E039 OF 2025 RULING 10

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34. In fact, the Applicant did place before the Court a Certified Copy of the Title Deed to the suit property which was handed over to him by the late EVANS KIBET CHERUBET upon completion of the purchase and taking possession thereof. 35. The question to be answered in this issue is whether or not the pending Originating Summons and the present Application are before the right Court for hearing and determination. 36. To begin with, the Applicant in the pending Originating Summons is seeking to be declared the lawful owner of the suit property currently registered in the name of the late EVANS KIBET CHERUBET. 37. The two main grounds for seeking this Order is the claim that the Applicant had purchased the suit property from the late EVANS KIBET CHERUBET in the years between 1992 and 1996 when he was indeed still alive and his occupation of the suit property for a period of over twenty (12) years without interruption from the Respondent herein. 38. Consequently, the fundamental issue for determination is whether or not the purchase of the suit property between the Applicant and the late EVANS KIBET CHERUBET was lawful and enforceable or not. 39. In addition to the foregoing, the second fundamental issue is whether the Applicant’s occupation on the suit property did extinguish the ownership of the late EVANS KIBET CHERUBET and/or any successor in title by operation of law. 40. While it is true that the registered owner EVANS KIBET CHERUBET is deceased, the fundamental issues raised by the ELC OS E039 OF 2025 RULING 11

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Applicant through the pending Originating Summons cannot be determined through the succession proceedings because they talk to the ownership and occupation of the suit property between two parties that are not related to each other. 41. As such, this Court hereby makes a finding that indeed this Court has the jurisdiction to entertain and/or determine the pending Originating Summons and/or present Application before the Court. ISSUE NO.3- DOES THE PRESENT APPLICATION SATISFY THE INGREDIENTS OF GRANTING A TEMPORARY INJUNCTION? 42. The Court having made a finding that it has the relevant jurisdiction to hear and determine the present Application, the next issue for determination is whether the Applicant has satisfied the ingredients of granting an Order of Temporary Injunction. 43. The present Application is premised on the provisions of Order 40 Rule 1 of the Civil Procedure Rules, 2010. 44. The principles of granting an Temporary Injunction were exhaustively discussed in the case of Nguruman Limited versus Jan Bonde Nielsen & 2 others CA No.77 of 2012 (2014) eKLR where the Court of Appeal held that; “in an interlocutory injunction application the Applicant has to satisfy the triple requirements to a, establishes his case only at a prima facie level, b, demonstrates irreparable injury if a temporary injunction is not granted and c, ally any doubts as to b, by showing that the balance of convenience is in his favour. ELC OS E039 OF 2025 RULING 12

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These are the three pillars on which rest the foundation of any order of injunction interlocutory or permanent. It is established that all the above three conditions and states are to be applied as separate distinct and logical hurdles which the applicant is expected to surmount sequentially”. 45. In a nutshell, the ingredients to be considered in an Application for Temporary Injunction are broadly three which are firstly whether or not the Applicant had established a prima facie case, secondly whether or not damages are sufficient for compensation and thirdly, where does the balance of convenience tilt. 46. In essence, this Court will now evaluate the above ingredients as against the facts pleaded by the Applicant and the Respondent and make its determination on whether the Applicant has satisfied the ingredients of granting a temporary injunction or not. A)Establishment of a prima facie case. 47. The first ingredient in considering an application for injunction is the establishment of a prima facie case. 48. In the case of MRAO LIMITED-VERSUS- FIRST AMERICAN BANK OF KENYA LIMITED (2003) eKLR, the Court of Appeal gave a determination on a prima facie case as follows; “... in civil cases, it is a case in which, on the material presented to the court properly directing itself will conclude that there exists a legal right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.” ELC OS E039 OF 2025 RULING 13

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49. In the present Application, the Applicant confirms that there is a pending Originating Summons against the Estate of the Late EVANS KIBET CHERUBET. 50. In the pending Originating Summons, the Applicant pleads that he is entitled to be the lawful owner of the suit property having purchased the same from the late EVANS KIBET CHERUBET in the years between 1992 and 1996. 51. The Applicant further pleads that upon acquisition of the suit property from the late EVANS KIBET CHERUBET, he was granted possession, use and the original Title Deed dated 14.01.1993 pending the transfer of the same to him. 52. As fate would have it, the late EVANS KIBET CHERUBET did pass away before the ownership documents would be transferred to the name of the Applicant. 53. Be that as it may, the Applicant did confirm occupation and use of the suit property since the years 1992 up to date and did produce a number of photographs to confirm the developments on the suit property. 54. The Respondent on the other hand did not dispute the possession and use of the Applicant on the suit property. 55. According to the Respondent’s pleadings, the issue pleaded is that the Applicant ought to have raised his ownership rights in the Succession Cause that had been instituted to administer the assets of the late EVANS KIBET CHERUBET. 56. As earlier stated, the cause of action raised by the Applicant in the pending Originating Summons relates to the ownership and occupation of the suit property. ELC OS E039 OF 2025 RULING 14

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57. Consequently, these causes of actions are within the provisions of the Environment and Land Court Act, No. 19 of 2012 and not the Law of succession as pleaded by the Respondent. 58. It is clear that the Applicant has pleaded facts that demonstrate an infringement of his ownership rights as a purchaser of the suit property from the late EVANS KIBET CHERUBET which are being interfered with by the Respondent through the proceedings known as ELDORET HIGH COURT SUCCESSION NO.164 OF 2004. 59. As such, this Court is required to determine whether or not the Applicant has any ownership rights and/or is the lawful owner of the suit property which is also the subject matter of the proceedings known as ELDORET HIGH COURT SUCCESSION NO. 164 OF 2004. 60. In the event the Applicant is declared the legal and lawful owner of the suit property herein, then the actions of the Respondent to deal with the same as an asset of the late EVANS KIBET CHERUBET should be prohibited. 61. In the alternative, if the suit property is declared as the asset of the late EVANS KIBET CHERUBET, then the same can be administered through the Respondent’s proceedingsq known as ELDORET HIGH COURT SUCCESSION CASE NO. 164 OF 2004. 62. In conclusion, this Court is satisfied that the Applicant herein has established a prima facie case as required under this principle. b) Damages are not adequate ELC OS E039 OF 2025 RULING 15

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63. The second ingredient for consideration is whether damages would suffice if the injunction is not granted. 64. In the case of PIUS KIPCHIRCHIR KAGO-VERSUS- FRANK KIMELI TENAI (2018) eKLR, the Court described irreparable injury as follows; “Irreparable injury means that the injury must be one that cannot be adequately compensated for in damages and that the existence of a prima facie case is not itself sufficient. The Applicant should further show that irreparable injury will occur to him if the injunction is not granted and there is no other remedy open to him by which he will protect himself from the consequences of the apprehended injury.” 65. In this ingredient, the Applicant is expected to demonstrate that if the injunction is not granted and the injury actually occurs, then damages would be inadequate to remedy the injury and/or the harm occasioned by the injury is one that would result to substantial loss. 66. The Applicant in the present Applicant did plead and submit that he has been in occupation and use of the suit property since the year 1992 when he did purchase the suit property from the Respondent. 67. As earlier stated, the Respondent did not dispute the occupation and use of the suit property by the Applicant. 68. The Applicant did further produce various photographs demonstrating his occupation of the suit property. ELC OS E039 OF 2025 RULING 16

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69. The Court has carefully perused the photographs presented before the Court and agrees with the Applicant that he has indeed established a homestead which is his place of residence. 70. Whether or not the developments undertaken by the Applicants were established in the year 1992 or not is a subject of discussion at the hearing of the main Originating Summons. 71. However, at this moment, it would be punitive to allow the Respondent to cause any injury and/or harm to the Applicant and/or the developments erected on the suit property before a proper determination on who the lawful owner of the suit property is pronounced. 72. Any eviction, payment of rent, demolition of the developments, or orders barring the Applicant from using the suit property which he is in occupation of would cause irreparable loss and harm as the Applicant would be rendered homeless and destitute without a proper and full hearing. 73. As such, this Court is of the finding that indeed the Applicant had demonstrated irreparable loss and/or substantial loss if the orders sought in the present Application are not granted. c) When in doubt of b, the matter be decided on a balance of convenience. 74. The last ingredient is where the Court is in doubt of ingredient a and b, then the application should be decided on a balance of convenience. 75. This Court having been satisfied that the Applicant had a prima facie case and if an injunction is not issued that he is to ELC OS E039 OF 2025 RULING 17

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suffer irreparable loss and harm, then this Court is not in doubt that the balance of convenience tilts in favour of the Applicant herein. 76. In conclusion, this Court makes a finding that indeed the Applicant had satisfied the three ingredients required in granting a temporary injunction as provided in law. ISSUE NO. 4- IS THE PRESENT APPLICATION MERITED OR NOT? 77. The fourth issue is whether or not the present Application is merited or not. 78. The Court having made a finding that indeed the Applicant has satisfied the three ingredients to be considered in granting a temporary injunction, then the present Application is merited. ISSUE NO.5- WHO BEARS THE COSTS OF THE PRESENT APPLICATION? 79. Costs are usually awarded to a winning party unless otherwise ordered. 80. As such, the Applicant herein having been successful in the present Application is awarded costs of the same. CONCLUSION 81. In conclusion, the Court hereby makes the following Orders in terms of the present Application; A. THE APPLICATION DATED 25.11.2025 BE AND IS HEREBY ALLOWED. ELC OS E039 OF 2025 RULING 18

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B. THAT THERE BE TEMPORARY ORDERS OF INJUNCTION RESTRAINING THE DEFENDANT/RESPONDENT HER HERSELF, 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 THAT PARCEL OF LAND KNOWN AS LR.NO.KARUNA/SOSIANI BLOCK 8 (USWO)/286 MEASURING 4.064 HECTARES PENDING THE HEARING AND DETERMINATION OF THE MAIN SUIT HEREIN. C. THE COSTS OF THE APPLICATION ARE HEREBY AWARDED TO THE APPLICANT PAYABLE BY THE RESPONDENT. DATED, SIGNED and DELIVERED in ELDORET this 23RD DAY OF SEPTEMBER, 2026. EMMANUEL.M.WASHE JUDGE IN THE PRESENCE OF: Court Assistant: Brian Counsel for the Applicant: Ms. Nasongo holding brief for Mr. Yego Counsel for the Respondent: Ms. Moronge holding brief for Mr. Warigi ELC OS E039 OF 2025 RULING 19

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