Kimilot (Suing as the administrator of the Estate of Cheruiyot Kimilot – Deceased) v Kimaiyo & 5 others (Environment and Land Case E067 of 2025) [2026] KEELC 527 (KLR)
The bottom line
#Kenya's Eldoret land court refused to evict occupying defendants before trial, holding that removing people from occupied land needs special circumstances and a much stronger case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application herein is res judicata
- 2.Whether the court should issue the temporary injunction sought by the Plaintiff/Applicant
- 3.Who shall bear the costs of this application
Key legal issues
#Whether the application was res judicata
Not res judicata; the earlier eviction application in ELC No. 321 of 2016(OS) was withdrawn with no orders as to costs and was never determined on merit, and the relief sought here (interlocutory injunction) differs from the earlier eviction orders.
Applying Section 7 of the Civil Procedure Act and the elements set out by the Supreme Court in John Florence Maritime Services, the parties and subject matter are the same, but there is no valid judgment or ruling on the former application; the Defendants admitted the earlier application was withdrawn with no orders as to costs, and the court had advised the Plaintiff it lacked jurisdiction over it. The relief sought also differs. The Preliminary Objection therefore failed.
Whether the temporary injunction should issue
Refused. Because the Defendants are in occupation, the orders would effectively evict them, making the injunction mandatory in nature, requiring special circumstances and the clearest of cases. The Plaintiff failed to show a prima facie case, irreparable harm or balance of convenience, given the pending appeal and injunction application before the Court of Appeal.
The prayers in the application mirror the eviction and permanent injunction sought in the Plaint, so granting them would determine the suit without trial. The Defendants demonstrated a Notice of Appeal with a filing-fee receipt and a pending injunction application at the Court of Appeal over the same land, which undermined the Plaintiff's prima facie case. Evicting them pending appeal would risk rendering the appeal nugatory and cause greater hardship.
Who bears the costs
Although the application failed, the Defendants were not awarded its costs because their continued stay on the land despite the judgment occasioned the suit; the Plaintiff got costs of the failed Preliminary Objection.
Section 27 of the Civil Procedure Act gives the court discretion to depart from the general rule that costs follow the event. The court took into account that it was the Defendants' continued occupation of the land after judgment that pushed the Plaintiff to file the suit, and therefore denied them the costs of the application even though it was dismissed.
Legal principles established
#- Res judicata requires a former judgment or order that was final, on merit, by a court of competent jurisdiction, with identical parties, subject matter and cause of action; where the prior application was withdrawn or not determined on merit, the doctrine does not apply.
- Where defendants are in occupation of land, an injunction restraining them from remaining on the land operates as a mandatory injunction, grantable on an interlocutory application only in clear cases and upon proof of special circumstances.
Court orders
#- 1.The Defendants/Respondents' Notice of Preliminary Objection dated 29th August, 2025 is dismissed with costs (costs to the Plaintiff)
- 2.The Plaintiff/Applicant's Notice of Motion dated 10th July, 2025 is dismissed with no orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 3A and 34 of the Civil Procedure Act; Order 22 Rule 29 and Order 40 Rules 1, 2 & 3 of the Civil Procedure Rules
Relief refused
#Temporary injunction restraining the Defendants from entering upon, remaining on, cultivating, constructing on or otherwise interfering with LR No. Uasin Gishu/Kaptagat/150 pending hearing and determination of the suit
The orders sought would have the effect of evicting the Defendants and determining the main suit without trial, converting the application into a mandatory injunction for which no special circumstances were shown; the Plaintiff failed to establish a prima facie case given the pending appeal and injunction application at the Court of Appeal
Order directing the OCS Kaptagat Police Station to provide security and ensure compliance
Ancillary to the refused injunction, which failed
Costs
The Defendants' Notice of Preliminary Objection is dismissed with costs to the Plaintiff; the Plaintiff's Notice of Motion is dismissed with no orders as to costs (each side bearing its own costs of the application).
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Due to this differentiation in the issues, and there being no determination on the former application that was made on merit, this instant application and suit cannot be said to be res judicata.
As a result, this changes the nature of the injunction sought from an ordinary interlocutory injunction to a mandatory injunction
The Defendants/Respondents' Notice of Preliminary Objection dated 29th August, 2025 lacks merit and is dismissed with costs.
The Plaintiff/Applicant's Notice of Motion dated 10th July, 2025 equally lacks merit and the same is dismissed with no orders as to costs.
Issues in the judgment
#The suit's own case number is not stated anywhere in the judgment, though the related suit is referred to variously as ELC Case No. 321 of 2015 (OS) and ELC Case No. 321 of 2016(OS).
The date of the Notice of Appeal is inconsistently given as 15th and 16th May, 2025.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimilot (Suing as the administrator of the Estate of Cheruiyot Kimilot – Deceased) v Kimaiyo & 5 others (Environment and Land Case E067 of 2025) [2026] KEELC 527 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/527/eng@2026-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.