Joshua Kipkemei Chumo & 2 Others v Japhet Kibiwott Lelei & 4 Others; Irine Chepkemboi Koskei (Interested Party); Emmanuel Kipkorir Kemei & Elisha Kiprotich Arusei (Intended Interested Parties)

AND EMMANUEL KIPKORIR KEMEI………1ST INTENDED INTERESTED PARTY ELISHA KIPROTICH ARUSEI……….2ND INTENDED INTERESTED PARTY RULING 1. This ruling is in respect of an application by way of a Notice of Motion Application dated 17 th February 2026 filed by the Defendant/Applicant through the firm of Manani, Lilan, Mwetich & Company Advocates, seeking the following orders: a) That this Honourable court do issue order of temporary injunction against the respondents and the intended interested parties, their servants and or agents restraining them from transferring, charging, putting up for sale, encroaching upon, cultivating, trespassing or developing on or in any other way utilizing the parcels numbers KAPSABET ELCC 063 OF 2021 NAND/CHEPTIL/464 RULING and 2

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NANDI/CHEPTIL/463 pending the hearing and determination of the suit herein. b) That this Honourable court do issue orders of restriction against the parcels numbers Nandi/Cheptil/464 and Nandi/Cheptil/463 pending the hearing and determination of this suit. c) That the Land Registrar to supply to this court the order registered against the parcels on 2/5/2023 resulting in the transfer of the parcels to third parties and also certified copies of transfer of land. d) That the Defendant/Applicant be granted leave to amend his counter claim to enjoin Emmanuel Kipkorir Kemei and Elisha Kiprotich Arusei, the new owners of the suit property, as interested parties. e) That this suit be listed for hearing on priority basis. f) That the costs of this application and the suit be borne by the Respondent. 2. The Application is anchored upon several grounds which include: a) That the 1st Plaintiff and the 4th Defendant/Respondents have caused transfer of the suit properties herein being KAPSABET ELCC 063 OF 2021 RULING 3

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parcels numbers Nandi/Cheptil/464 and Nandi/Cheptil/463 to their sons Emmanuel Kipkorir Kemei and Elisha Kiprotich Arusei respectively. b) The 1st Plaintiff and the 4th Defendants/Respondents actions have caused further transfer of the disputed titles which are the subject matter of this suit to third parties. c) The 1st Plaintiff and the 4th Defendants/Respondents should be restrained from taking any further actions and/or cultivation on the parcel numbers Nandi/Cheptil/464 and Nandi/Cheptil/463 including the new registered owners being their sons Emmanuel Kipkorir Kemei and Elisha Kiprotich Arusei. 3. The Application is further premised upon an affidavit sworn on the 17th February 2026 by the defendant/applicant who averred in part, that in 1995 he bought land parcel number Nandi/Cheptil/246 measuring approximately 17 acres from one Kibiwott Chesilim Kosgei and within the same year he was issued with a title deed. That he moved the court for intervention vide Kapsabet PMCC No. 129 of 1997, which suit was KAPSABET ELCC 063 OF 2021 RULING 4

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finalized on 13/10/1997 with an order/decree that the Plaintiffs herein vacate the said land. That the Plaintiffs also had another suit against the original owner of the land Kibiowott Chesilim Kosgei which they pursued until the court of Appeal at Eldoret vide Civil Appeal No. 281 of 2006 where upon the same abated on 5 th March 2012,That the Plaintiffs herein also while pursuing the Appeal at the High Court and Court of Appeal at Eldoret two separate cases they further filed a new suit at the Chief Magistrate’s Court being Eldoret CMCC No. 164 of 1998 against the original owner Kibiwott Chesilim Kosgei, the District Land Registrar, Nandi and himself. That this however did not happen in this instance since the Plaintiffs had already moved to court again vide the Plaintiff of this instant suit being Eldoret High Court Civil Case No. 156 of 2012 which was later Eldoret ELC No. 357 of 2017 and currently the suit herein. 4. Also, the applicant averred that what is currently going on has come as a shock since the 1" Plaintiff and 4th Defendant being husband and wife have gone ahead and transferred the titles to be cancelled to their sons KAPSABET ELCC 063 OF 2021 RULING 5

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Emmanuel Kipkorir Kemei and Elisha Kiprotich Arusei. That this was done while the suit herein is still pending in court again the motive of the Plaintiff's and the 4th Defendant/Respondents to defeat justice and further compound the parties to the suit which could be seen by their various applications to include an interested party who does not even hold any title to the land. 5. The Application was opposed by the 1st Defendant/Respondent through the firm of Songok and Company Advocates by his replying affidavit sworn on the 30th March 2026. He averred, inter alia; that the Defendant commenced proceedings relating to this suit in Kapsabet vide KAPSABET PMCC NO. 129 OF 1997 which they issued a decree directing that the same be executed by the District Commissioner Nandi BUT since 13/10/1997 (29 years) the same has never been executed.That vide ELDORET CMCC CASE NO. 164 OF 1998 they obtained ex parte judgement which they used to subdivide the original NANDI/CHEPTIL/246 title into land parcel parcels number numbers NANDI/CHEPTIL/464 and NANDI/CHEPTIL/463 in his KAPSABET ELCC 063 OF 2021 RULING 6

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name JOSHUA KIPKEME CHUMO and MARY JEPNGETICH respectively. That the Defendant/applicant made an application to set aside the ex parte judgement in the suit which was allowed and on 20/9/2013 and the suit was dismissed for want of prosecution and a decree to that effect was issued marking the close of the suit. 6. The respondent further stated that the effect of the decree therein was that the mother title to which the suit was filed against should have been reinstated and titles parcel numbers NANDI/CHEPTIL/464 and NANDI/CHEPTI/463 be cancelled. That this however, did not happen in this instance since the respondent had already moved to the court again vide the plaint of this instant suit being ELDORET HIGH COURT CIVIL CASE NO.156 OF 2012 which was later ELDORET ELC NO.237 OF 2017 and currently the suit herein. 7. The 1st and 2nd Intended Interested Parties through the firm of Rotich, Langat and Parners Advocates, also opposed the Application by way of their replying affidavit sworn by the 1st, interested party, EMMANUEL KIPKORIR KEMEI on his behalf and that of the 2 nd Interested Party. KAPSABET ELCC 063 OF 2021 RULING 7

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He averred that the applicant is seeking orders of temporary injunction against the 1 st and 2nd Intended Interested parties and from utilizing land parcels NANDI/CHEPTIL/464 and NANDI/CHEPTIL/463 which are registered in their names respectively and which they are in occupation and utilization of. That their father, the plaintiff/respondent subdivided his land NANDI/CHEPTIL/246 into NANDI/CHEPTIL/464 which was registered in the name of their mother, Mary Jepngetich in 2007 and NANDI/CHEPTIL/463 which was registered in his own name. 8. Further, the 1st and 2nd intended interested parties stated that their father, the plaintiff transferred his land NANDI/CHEPTIL/463 to the 2nd Intended Interested party in 2023 while my mother, Mary Jepngetich, transferred her parcel to him in 2024 after the applicant's application for restriction in ELDORET CMCC NO. 164/1998, was dismissed on 02/05/2023 and when there existed no orders of stay nor a decree estopping such a transaction. It was therefore, averred that praying for an order of injunction from "encroaching upon, cultivating, KAPSABET ELCC 063 OF 2021 RULING 8

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trespassing on or utilizing in any other way." against people who are already in occupation and use of the subject land parcels is a wanton abuse of the court's time, resources and process since it is equally seeking for an indirect eviction against his brother and himself who are the registered owners and users/occupiers of the subject parcels. 9. Learned counsel for the Applicant filed submissions dated 14th July 2026 and contended that it is not doubted that the Applicant has a prima facie case in view of a valid judgement in in his favour. The court in Kapsabet SPMCC NO 129 OF 1997, found and held that land parcel number Nandi Cheptil/246 belongs to the Applicant herein as beneficial owner. That the judgement has not been set aside and remains binding on the Respondent and the Applicant to date. That there is no greater proof of prima facie case than the judgement of court in Kapsabet SPMCC no 129 of 1997 in favour of the Applicant. 10. Counsel submitted that it is beyond adventure that the Applicant has solid prima facie case hence need for an order of injunction to retrain the Plaintiffs and Interest KAPSABET ELCC 063 OF 2021 RULING 9

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Parties from transferring or dealing in the land in a manner prejudicial to the proceedings herein. That it does not lie in the respondents and the collusive Interested parties to argue that the aforesaid judgement has been barred by limitation of actions. That 12 years may have passed but the period of limitation did not run on account of the multiplicity of the suits and appeals touching on the very subject matter. That time has never run against the decree in Kapsabet Spmcc no 129 of 1997. That in any event, this should be a fit issue for determination in the current suit and not through an interlocutory application like the instant one. 11. On the other hand, learned counsel for the Respondent filed submissions dated 18 th August 2026 and asserted that the plaintiff/applicant's claim and/or entitlement to the suit land was extinguished upon the expiration of limitation period of 12 years from the issuance of the eviction order on 24th October 1997 in Kapsabet PMCC no. 129 of 1997. That therefore, the process of acquisition of title to the suit properties by 1st Plaintiff and the 4th Defendant/Respondent and their KAPSABET ELCC 063 OF 2021 RULING 10

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subsequent transfer to the Intended Interested Parties were in accordance with the law since the Plaintiff/Applicant's right and/or entitlement to the suit properties had been extinguished according to the above statutory provision. That the Plaintiff/Applicant does not deserve the orders of injunctions being sought since his claim over the suit properties were extinguished upon the expiration of the statutory limitation period. 12. To buttress the submissions, it was submitted that the principles on when this Honourable Court should grant the orders of injunction sought are well settled as set out in East African Industries vs Trufoods [1972]EA 420 and Giella vs Cassman Brown & Co. Ltd [1923]EA 358. Restating the said principles, Ringera J, (as he then was) in Airland Tours & Travel Limited vs National Industrial Credit Bank Nairobi (Milimani) HCCC No. 1234 of 2009, set them out as follows:a) prima facie case with a probability of success at trial; b) The applicant is likely to suffer an injury, which cannot be adequately compensated by damages KAPSABET ELCC 063 OF 2021 RULING 11

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c) If the Court is in doubt, it should decide the application on a balance of convenience. 13. The 1st and 2nd interested parties also filed their submissions dated 20th May 2026 and contended that the applicant is seeking orders of temporary injunction against the intended interested parties who are the registered owners and occupants of the suit parcels stopping them from transferring, charging, putting up for sale, encroaching upon, cultivating, trespassing or developing or in any other way utilizing the suit land parcels. That the intended interested parties shall suffer irreparable loss beyond monetary compensation if the applicant is granted the orders sought in his application since they will be evicted unjustly before hearing of the main suit and determination by this Honourable Court. 14. This Honourable Court has considered the entire application, the replying affidavits, the rival submissions inclusive of the authorities provided therein. So, the Court has been called upon to resolve whether the applicant is entitled to the orders including an injunction sought in the KAPSABET ELCC 063 OF 2021 RULING 12

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application and the orders to issue for the ends of justice at this stage of the suit. 15. At the outset, this Honourable Court has noted the long unending history of the land in dispute tied together with a multiplicity of suits. Nonetheless, it is not imputed that the suit is devoid of triable issues which must be considered and determined. To the contrary, this Court will be very reluctant to disrupt the status of the suit properties herein, without first interrogating, through a full trial, the evidence presented in support and opposition to the suit. 16. By the character of injunctions and restrictions, the court agrees with all the parties herein for rightfully pointing out that the starting point is the case of Giella – vs- Cassman Brown & Co Ltd (1973) EA 358 which laid down the principles for the grant of interlocutory injunctions thus; i. The Applicant must show that he has a prima facie case with a probability of success. ii. An interlocutory injunction will not be normally granted unless the applicant might otherwise suffer KAPSABET ELCC 063 OF 2021 RULING 13

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irreparable injury which would not adequately be compensated by an award of damages. iii. If the court is in doubt, it will decide an application on the balance of convenience. 17. In the case of Mrao v First American Bank of Kenya Limited & 2 Others [2003] eKLR, a ‘prima facie case’ was defined as: “…one which on the material presented in court, a tribunal property 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 respondent...” 18. The Applicant has admitted that in the year 1997, a judgment was given in which they were found to be the bona-fide owners of the suit property. That this alone is enough to demonstrate a prima facie case in their favor. That however, in their own chronology of events, there were other several suits, some of which had ex parte judgments, some of which were dismissed but cumulatively, led to the subdivision of the suit property KAPSABET ELCC 063 OF 2021 RULING 14

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and the subsequent transfer of the two parcels to the 1 st and 2nd intended interested parties. 19. Plainly, in the year 1997 when a judgment was delivered in his favour, the Applicant had the right to realize its fruits and the subsequent decree. That however, he failed to execute the said order based on his explanation that there were other multiple cases in the matter. Nothing has been availed to show that he tried to execute or even initiate the execution process. 20. The Applicant may have had a judgment in his favour in the year 1997 but several other decisions of different courts relating to the same subject matter have changed propelled the suit property to change shape and ownership. There is no evidence that he is currently the registered owner of the suit property nor has he shown that he has been the possessory owner of the same. This points to his rights over the suit properties as confirmed by him while others are registered as owners thereof and have been in occupation of the suit properties. 21. In the premises, this Court is conscious of the decision in Kenya Commercial Finance Co. Ltd vs. KAPSABET ELCC 063 OF 2021 RULING 15

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Afraha Education Society [2001] Vol. 1 EA 86 where it was observed that the three-part test set in the landmark case of Giella –vs- Cassman Brown (supra), are sequential, separate and distinct hurdles. That the court cannot investigate or consider the other grounds where a prima facie case has not been established by an applicant. 22. It is noted that the injunction remedy sought in the application is an equitable remedy. Such remedies have parameters within which they are sought. The Applicant herein sought the said remedy yet he knew that he was guilty of laches for failing to act upon a judgment given to him in the year 1997. It is important to note that equity aids the vigilant but not the indolent. 23. Having noted the character of the instant case and its extremely lengthy history, this Court has to ensure that the subject matter of the suit herein remains preserved as it invites the parties, at the full hearing of the case, to give their evidence and a decision be rendered thereby. 24. This Honourable Court has the mandate to grant interim preservation orders under section 13 (7) of the Environment and Land Court Act 2015 (2011) and KAPSABET ELCC 063 OF 2021 RULING 16

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the same include a status quo order over the property in dispute. 25. In the obtaining circumstances, the order merited is status quo over the suit property rather than the temporary injunction sought in the application as the issues are hotly contested herein; see also Musa Angira Angira vs Industrial Commercial Development Corporation (2015) eKLR. 26. In the result, the application is substantially merited and hereby allowed on the terms infra; i. That an order of status quo in lieu of injunction order sought, do hereby issue maintaining the prevailing status of the suit NAND/CHEPTIL/464 land and parcel numbers NANDI/CHEPTIL/463 pending the hearing and determination of the suit herein. In particular, the parties shall not sell, charge, sub divide and/or transfer the said parcels of land pending the outcome of this suit. ii. That orders numbers KAPSABET ELCC 063 OF 2021 of restriction against Nandi/Cheptil/464 RULING the parcels and 17

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Nandi/Cheptil/463 pending the hearing and determination of this suit to issue accordingly. iii. That the Land Registrar to supply to this court the order registered against the parcels on 2/5/2023 resulting in the transfer of the parcels to third parties and also certified copies of transfer of land. iv. That the Defendant/Applicant be granted leave to amend his counter claim to join Emmanuel Kipkorir Kemei and Elisha Kiprotich Arusei, the new owners of the suit property, as interested parties herein. v. That the costs of this application be in the cause. vi. That this suit be heard on priority basis, mention on 8th October 2026 to confirm compliance and the applicant/defendant’s counsel to serve the other parties accordingly. 27. It is so ordered. Dated and Delivered at Kapsabet this 23rd day of September 2026. HON. G M A ONGONDO JUDGE KAPSABET ELCC 063 OF 2021 RULING 18

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In the presence of; 1. Mr Mwetich learned counsel for the applicant/defendant 2. Ms Barno learned counsel for the 1 st and 2nd interested parties 3. Walter and Emma, court assistants KAPSABET ELCC 063 OF 2021 RULING 19

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