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ELCPartially AllowedOriginating Summons dated 11th February 2025

Jepkemei v Arap Sitienei (Land Case (Originating Summons) E001 of 2025) [2026] KEELC 4631 (KLR)

Environment and Land Court
15 July 2026
2,167 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kapsabet dealt with a preliminary objection dated 25th February 2025 and a Notice of Motion dated 13th February 2025 in a suit brought by originating summons dated 11th February 2025, in which the Plaintiff/Applicant claims 2.0 acres of land parcel Nandi/Surungai/219 by adverse possession. The Defendant/Respondent, the registered proprietor and brother of the Applicant's alleged late husband, objected on grounds that the court lacked jurisdiction because the claim concerns the estate of a deceased person, and that the Applicant lacked locus standi absent a grant of letters of administration, invoking Section 82(a) of the Law of Succession Act. The court, applying Mukisa Biscuit and Oraro, held that the objection depended on contested facts, principally whether the Applicant was married to the deceased, and was therefore not a pure point of law; it was dismissed. On the application for temporary injunction or maintenance of status quo, the court applied Giella and Nguruman, finding a prima facie case in the arguable adverse possession claim, irreparable harm in the potential loss of her home of many years, and the balance of convenience favouring the Applicant. The court partially allowed the application by issuing an order of maintenance of status quo confirming the Applicant's gainful possession and use of the 2.0 acres pending trial, directed a pre-trial conference, and ordered each party to bear their own costs.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the preliminary objection dated 25th February 2025 is legally sustainable, in particular whether it raises pure points of law on jurisdiction and locus standi
  2. 2.Whether the Applicant has established the threshold for interim injunctive/interim preservation orders in her application dated 13th February 2025

Key legal issues

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01

Whether the preliminary objection raising jurisdiction and locus standi was sustainable

Holding

The preliminary objection was dismissed because its grounds depend on contested facts, chiefly proof of the alleged marriage, and are therefore not pure points of law; they are properly dealt with at the merits hearing.

Reasoning

The Applicant's ownership claim is tied to her alleged marriage to the deceased, a debatable issue requiring evidence. Following Mukisa Biscuit and Oraro, a preliminary objection must rest on pure points of law and not contested facts. Locus standi stems from the alleged marriage, which if proven or not can then aid the court in determining the dispute; hence the objection could not be sustained.

p. 3
02

Whether the Applicant met the Giella criteria for interim relief

Holding

The court found a prima facie case in the adverse possession claim, irreparable harm in the potential loss of her home, and balance of convenience tilting in her favour, warranting maintenance of status quo over the 2.0 acres.

Reasoning

The Applicant claims ownership by adverse possession which must be determined on merit, and she occupies the land, having built a home there since 1988; losing the home may not be compensated by damages. The Respondent, as registered proprietor, would lose nothing if she continues to occupy as she has since 1988, whereas denying orders would greatly inconvenience her if she succeeds at trial. Interim preservation orders already in place since 14th February 2025 would be continued as status quo.

p. 4

Legal principles established

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  • A preliminary objection must not involve contested facts or require the court to ascertain evidence; issues depending on proof of facts, such as a marriage said to ground locus standi, must be determined at the merits hearing.
  • A prima facie case in civil proceedings includes but is not confined to a genuine and arguable case, in which a right has apparently been infringed so as to call for an explanation or rebuttal.

Court orders

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  1. 1.The Notice of Preliminary Objection dated 25th February 2025 is dismissed
  2. 2.The application dated 13th February 2025 is partially allowed: an order of maintenance of status quo that the Applicant is in gainful possession and use of the 2.0 acres of LR. NO. NANDI/SURUNGAI/219 pending the hearing and final determination of the suit
  3. 3.The suit be set down for pre-trial conference
  4. 4.Each party to bear their own costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over disputes relating to land

Relief refused

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Prayer for temporary injunction (as distinct from maintenance of status quo) and order that the OCS Surungai Police Station provide security during implementation of orders

Interim preservation orders had been in place since 14th February 2025, so the court declined to issue further orders serving the same purpose

p. 4

Costs

Each party to bear their own costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is trite law that a preliminary objection must not involve contested facts or require the court to ascertain evidence; see Mukisa Biscuit Manufacturing Co. Ltd vs West End Distribution Ltd (1969) EA 696.
p. 2Nature of a preliminary objection
The point of law namely locus standi stems from the alleged marriage, which, if proven or not, can then aid the court to determine this dispute.
Locus standi and contested facts
An injury is irreparable where there is no standard by which their amount can be measured with reasonable accuracy or the injury or harm is such a nature that monetary compensation, of whatever amount, will never be adequate remedy
p. 4Irreparable harm (quoting Nguruman)
That the Notice of Preliminary Objection dated 25th February 2025 is dismissed.
p. 4Final orders - dismissal of preliminary objection
That the application dated 13th February 2025, is merited and partially allowed in terms of an interim preservation order hence, an order of maintenance of status quo be and is hereby issued that the Applicant is in gainful possession and use of the 2.0 acres of LR. NO. NANDI/ SURUNGAI/219 pending the hearing and final determination of the suit herein.
p. 4Final orders - status quo maintained

Issues in the judgment

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minor

Judgment states conflicting occupation start dates for the Applicant: 1998 in the grounds of the application and 1988 in the pleadings and the court's analysis.

minor

Date of delivery appears to be inconsistent with the sequence of filings and submissions, being dated 2026 after submissions of 2025, which may be a typographical error in the judgment.

minor

Typographical error in the final analysis: 'the Court is not included to give any other orders' where the intended word appears to be 'inclined'.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Jepkemei v Arap Sitienei (Land Case (Originating Summons) E001 of 2025) [2026] KEELC 4631 (KLR)", Case Analysis (2026). Originating Summons dated 11th February 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4631/eng@2026-07-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.