REPUBLIC OF KENYA
IN THE ENVIRONMENT AND LAND COURT AT BOMET
ELC LC NO. E075 OF 2026
GRACE CHEROP KORIR ………………………. PLAINTIFF/APPLICANT
VERSUS
PHILIP LANGAT ……………….…………. DEFENDANT/RESPONDENT
R U L I N G
1. The Notice of Motion application dated 28th September, 2026 was brought on behalf of the Plaintiff/Applicant pursuant to the provisions of Order 40, Rules 1 and 2 of the Civil Procedure Rules and section 3A of the Civil Procedure Act.
2. The application seeks orders that:
(i) the Respondent herein, whether by himself, servants, agents, or whoever acting through him, be restrained by an order of temporary injunction from trespassing, developing, or doing anything whatsoever contrary to the Applicant’s property rights in the land parcel comprised in L.R. No. KERICHO/KIPSONOI S.S./350 pending the final determination of this suit.
(ii) the necessary directions be given.
(iii) costs of the Application be provided for.
3. The Application was supported by the averments in the Supporting Affidavit of the Plaintiff/Applicant sworn on 28th September, 2026 and the annexures thereto.
4. The Applicant’s case is that she is the legal bona fide owner of land No. L.R. KERICHO/KIPSONOI S.S./350 which the Respondent has trespassed upon without any colour of right and without her consent. That the Applicant stands to lose approximately 5 acres of L.R. No. KERICHO/KIPSONOI S.S./350 pursuant to the adverse activities of the Respondent. That the Respondent has no legal basis for occupying, using, and otherwise doing anything on the suit property. That the Respondent is in the process of ploughing the land in preparation for planting crops thereon, which is detrimental to her interests as the lawful owner of the suit property. That unless the orders sought are granted, she is likely to suffer irreparable loss and damage which might not be adequately compensated in monetary terms and the application herein may be rendered nugatory.
5. The Respondent filed his Replying Affidavit sworn on 5th October, 2026, vide which he denied that the Applicant was entitled to the orders sought and averred that the suit land has been the subject of a long-standing dispute between the families of the parties herein, for which there have been several meetings to resolve the dispute culminating in an agreement that a portion measuring five (5) acres be carved out of the suit land for the Respondent’s family. That the agreement was acted upon; the identified portion was surveyed on or about 28th October, 2022, after which his side of the family commenced developments thereon, constructed structures thereon openly and with the knowledge and participation of the members of the Applicant’s family.
6. That the Applicant’s present position is wholly inconsistent with her conduct during the family resolution process and, in particular, her participation in the events of 8th November, 2025, during a meeting and the handing over of the land to the Keringet family. The Respondent denied ever threatening the Applicant, destroying her property or interfering with her possession of the suit property. The Respondent further challenged the root of the Applicant’s title.
7. Pursuant to directions given by the court on 12th October 2026, the application was heard by way of written submissions.
8. It was submitted on behalf of the Applicant vide the written submissions dated 19th October, 2026 that the principles governing the grant of a temporary injunction were set out in the case of Giella –vs- Casman Brown & Co. Ltd. (1973) EA 358. That the Applicant had demonstrated that she was the registered proprietor of the suit property measuring 9.2 hectares, as evidenced by the title deed annexed to her Supporting Affidavit. That the Applicant has established a prima facie case warranting the grant of the orders sought.
9. Counsel further submitted that the Applicant contends that the Respondent’s continued occupation and cultivation of the disputed portion of land threatens her use, possession and enjoyment of the property. That her attempts to have the Respondent vacate the land have been unsuccessful. That unless restrained, the Respondent’s continued activities may further interfere with the Applicant’s property interests and alter the existing position before the dispute is conclusively determined.
10. Counsel submitted further that the balance of convenience tilts in favour of granting the order sought. Counsel submitted that Order 40 Rule 1 of the Civil Procedure Rules empowers the Court to make orders to prevent property in dispute from being wasted, damaged, alienated or otherwise changed before disposal of the suit.
11. That if the Court considers that the requested injunction would disturb the Respondent’s existing occupation or livelihood, the Applicant asks in the alternative that there may be no further construction, extension of cultivation or development on the disputed five-acre portion, no transfer, subdivision or other dealings affecting the suit property and no eviction or change of occupation pending an expedited hearing. That this would preserve the subject matter without resolving the parties’ competing claims on affidavit evidence.
12. On behalf of the Respondent, it was submitted vide the written submissions dated 23rd October, 2026 filed by Omondi Ogutu Associates Advocates that the Applicant’s ownership of the suit land is seriously disputed and requires determination at trial. That the circumstances disclosed in the Replying Affidavit raise serious questions which cannot be properly resolved by merely accepting the Applicant’s title deed at face value. That section 26 of the Land Registration Act recognizes that a certificate of title is not immune from challenge where the circumstances prescribed by law are established. That the existence of the title deed is not in every case the end of the inquiry, particularly where the root of the title has been challenged. Counsel relied on the case of Munyu Maina –vs- Hiram Gathika Maina [2013] eKLR to support the submission.
13. Counsel further submitted that the Respondent’s occupation of the suit land was a result of family and local administrative intervention through various meetings.
14. That the Applicant has not established a basis for the interlocutory relief sought as set in Guella –vs- Cassman Brown Co. Ltd. (1973) EA 358 and Nguruman Limited –vs- Jan Bonde Nielsen & 2 Others [2014] eKLR. That the orders sought would substantially displace the Respondent and his family from the land – thus having the practical effect of granting the very substantive relief sought in the main suit.
15. Counsel submitted further that the balance of convenience favours preservation of the existing status quo pending an expedited hearing. Counsel urged the court to dismiss the application.
16. I have considered the application and the grounds in support thereof as contained in the application, the Supporting and Supplementary Affidavits and annexures. I have also considered the contents of the Replying Affidavit and the written submissions filed by the parties. The substantive relief sought is an order of temporary injunction. The grounds for grant of the same are provided for under Order 40 Rule 1 of the Civil Procedure Rules. These are that the applicant has to prove by Affidavit or otherwise that the property in dispute in the suit is in danger of being wasted, damaged, or alienated by any party to the suit or wrongfully sold in execution of a decree. The parties herein relied on Giella vs Cassman Brown Co. Ltd (1973) 358, where grounds were expounded that the Applicant must establish a prima facie case with a probability of success; secondly, that an interlocutory injunction will not normally be granted unless the Applicant would suffer irreparable injury which would not adequately be compensated in damages and that when the court is in doubt, it will decide the application on a balance of convenience.
17. Although the Plaintiff exhibited a title deed to demonstrate ownership of the suit land, it was not denied that the Respondent is in occupation of a portion generally agreed to measure 5 acres or thereabout of the suit land. And although the Applicant does not disclose the date of the Respondent’s entry onto the land, the Respondent stated in paragraphs 15 and 16 of the Replying Affidavit that when the portion measuring 5 acres of the suit land was identified and surveyed on 28th October, 2022, his family entered onto the land and openly commenced development thereof. This claim was not controverted even in the Supplementary Affidavit.
18. If the status on the ground is that the Respondent has been in occupation of the disputed portion since 2022, to issue injunctive orders as sought in the application will amount to evicting him from the land before the hearing. In my view, the appropriate order in the circumstances would be one that preserves the status quo of the suit land awaiting determination of the issues in controversy in the main suit.
19. It was submitted on behalf of the Applicant that such an order would be one that would restrain further construction, extension of cultivation or development on the disputed five-acre portion, transfer, subdivision or other dealings on the suit property. One that ensures no eviction or change of occupation pending the expedited hearing of the suit.
20. On behalf of the Respondent, it was submitted that such order would be one that preserves the existing status quo pending expeditious hearing of the main suit.
21. In the premises, the Court finds that the Application has merit for purposes of preserving the status quo prevailing. The Court hereby allows the application as follows as follows;
(a) The status quo obtaining as at the date hereof, namely that the Respondent is in occupation of an identified portion of the suit land measuring approximately 5 acres, is hereby maintained pending the hearing and determination of the suit.
(b) The Respondent is, however, hereby restrained from further or continuing with construction of any structures on or subdividing or parting with possession of the portion of the suit land measuring 5 acres which he occupies or any other portion of the suit land pending hearing and determination of the suit.
(c) For the expeditious hearing and disposal of the suit, the parties shall file and exchange compliance documents within 14 days hereof in readiness for pre-trial conference.
(d) Costs of the Application shall be in the main suit.
Orders accordingly.
Ruling dated and signed at Bomet and delivered virtually this 5th day of November 2026.
E. ASATI,
JUDGE.
In the presence of:
Chuma/Zaddy Court Assistant.
No appearance for the Plaintiff/Applicant.
Momany h/b for Ogutu for the Defendant/Respondent.
Source: Supplied judgment file.