Jepkemei v Arap Sitienei (Land Case (Originating Summons) E001 of 2025) [2026] KEELC 4631 (KLR)
The bottom line
#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 preliminary objection dated 25th February 2025 is legally sustainable, in particular whether it raises pure points of law on jurisdiction and locus standi
- 2.Whether the Applicant has established the threshold for interim injunctive/interim preservation orders in her application dated 13th February 2025
Key legal issues
#Whether the preliminary objection raising jurisdiction and locus standi was sustainable
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.
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.
Whether the Applicant met the Giella criteria for interim relief
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.
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.
Legal principles established
#- 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
#- 1.The Notice of Preliminary Objection dated 25th February 2025 is dismissed
- 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.The suit be set down for pre-trial conference
- 4.Each party to bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court over disputes relating to land
Relief refused
#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
Costs
Each party to bear their own costs
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.
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.
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.
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
That the Notice of Preliminary Objection dated 25th February 2025 is dismissed.
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.
Issues in the judgment
#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.
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.
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.