Korir v Chepkwony

anyone acting under his authority restraining any dealings and/or any further dealings in the land formerly known as Kericho/Litein/560, and any subdivisions thereon being Kericho/ Litein/2742 and Kericho/Litein/2743. (sic) 3. f. That entry no. 4 registered on 21st February 2023 being a mutation of title for the subdivision of Kericho/Litein/560 into parcels Kericho/Litein/2742 and Kericho/Litein/2743 be cancelled and/or revoked. g. That the costs of this application be provided for. h. Any other relief this Honourable Court may deem it t to grant. The application is based on the grounds on its face and the supporting adavit of John Kibet Korir that is sworn on 31st July, 2025. Factual Background. 4. The Plainti/Applicant commenced the present proceedings vide the Originating Summons dated 13th November, 2015 wherein he seeks the following orders; a. That this Honourable Court be pleased to declare that the Applicant is entitled to Two (2) acres comprised in LR No. Kericho/Litein/560 which is registered in the name of Daniel Kiplangat Chepkwony who is the Respondent herein, by way of adverse possession. b. That this Honourable Court be pleased to issue an order directing that upon such nding and declaration that the Applicant is entitled to the aforesaid 2 acres of land the subject title be cancelled and a new title be issued therefor to the Applicant to the extent of his entitlement. (sic) c. That costs of the application be provided for. d. That any other relief the Court may think t and just to grant. 5. In response, the Defendant/Respondent led a Replying Adavit sworn on 1st April, 2016. 6. The application under consideration rst came up for hearing on 31st July, 2025 when the Court gave directions that it be served upon the Defendant/Respondent. 7. On 7th October, 2025, the Court gave directions that the application be canvassed by way of written submissions. It was mentioned severally to conrm ling of submissions and on 5th May, 2026 it was reserved for ruling. The Plainti/Applicant’s Contention. 8. The Plainti/Applicant contends that the Defendant/Respondent oered to sell to him a two-acre portion of land parcel No. Kericho/Litein/560 so that he could use the proceeds to pay a loan that he owed the Agricultural Finance Corporation. 9. The Plainti/Applicant also contends that on 19th September, 1986, he purchased the said portion of land from the Defendant/Respondent vide the land sale agreement of an even date. 10. The Plainti/Applicant further contends that he completed payment of the purchase price in December, 1986, took possession and planted tea. 11. It is the Plainti/Applicant’s contention that despite taking possession, the Defendant/Respondent refused to transfer the land to his name. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6127/eng@2026-10-01 2

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12. It is also the Plainti/Applicant’s contention that he has come to learn that the Defendant/ Respondent subdivided land parcel No. Kericho/Litein/560 into land parcel No’s Kericho/ Litein/2742 and 2743 and goes on to state that the parcel le for land parcel No. Kericho/Litein/560 was marked as closed. 13. It is further the Plainti/Applicant’s contention that the Defendant/Respondent transferred land parcel No. Kericho/Litein/2743 to his name and land parcel No. Kericho/Litein/2742 to a third party. 14. The Plainti/Applicant contends that on 13th July, 2025, the Defendant/Respondent forcefully entered a portion of the suit parcel of land and destroyed the tea bushes planted thereon. 15. The Plainti/Applicant also contends that unless the Defendant/Respondent is restrained by this Court, he will continue to defeat the ends of justice by making unavailable the suit parcel of land which is subject of the present proceedings. 16. The Plainti/Applicant ends his deposition by urging the Court to grant orders of injunction. The Defendant/Respondent’s Response. 17. In response to the Plainti/Applicant’s application, the Defendant/Respondent led a Replying Adavit sworn on 15th January, 2026. 18. The Defendant/Respondent deposes that he has always been in possession of land parcel No. Kericho/ Litein/560 which has now been subdivided into land parcel No’s Kericho/Litein/2742 and 2743. 19. The Defendant/Respondent also deposes that the Plainti/Applicant has never been in possession of the suit parcel of land. 20. The Defendant/Respondent further deposes that based on the foregoing, the orders of injunction sought cannot be granted as they will have the eect of evicting him from the suit parcel of land. 21. It is his deposition that he has been advised by his advocates on record, that the Plainti/Applicant is guilty of laches and he is therefore undeserving of the equitable remedy of an injunction and goes on to state that the Plainti/Applicant initially sued him in the year 2012, he then led another suit in the year 2014 before ling the present suit in the year 2015. 22. It is also his deposition that the Plainti/Applicant has slept on his rights for far too long. 23. It is further his deposition that the present suit is part heard and the hearing of the application under consideration is a waste of precious judicial time as it is stalling the hearing and determination of the suit. 24. The Defendant/Respondent deposes that he is advised by his advocates on record that the Plainti/ Applicant has failed to meet the prerequisites for issuance of an orders of injunction. 25. The Defendant/Respondent also deposes that he is further advised by his advocates on record that there is a disparity in the application under consideration and the Originating Summons with regard to the subject matter of the suit. 26. He ends his deposition by urging the Court to dismiss the Plainti/Applicant’s application. Issues for Determination. 27. The Plainti/Applicant led submissions on 6th March, 2026 while the Defendant/Respondent led submissions on 5th May, 2026. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6127/eng@2026-10-01 3

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28. The Plainti/Applicant relies on the judicial decisions of Giella vs Cassman Brown [1973] EA 358, Mrao v First American Bank of Kenya and 2 Others [2003] KLR 125 and submits that he has a prima facie case with a high probability of success because he purchased the suit parcel of land in the year 1986. 29. The Plainti/Applicant also submits that he has attached to the adavit in support of his application a copy of the sale agreement for the purchase of a portion of the suit parcel of land together with pictures that show the tea he has planted. He relies on the judicial decision of Naftali Ruthi Kinyua vs Patrick Thuita Gachure & another [2013] KEHC 3240 (KLR) in support of his submissions. 30. The Plainti/Applicant further submits that he will suer economic loss as a result of the Defendant/ Respondent’s actions. 31. It is the Plainti/Applicant’s submissions that the Defendant/Respondent’s conduct is in breach of the contract that they entered into as he completed payment of the purchase price as agreed. 32. It is also the Plainti/Applicant’s submissions that unless this Court intervenes, he will suer prejudice, loss and harm which the Defendant/Respondent will not be in a position to compensate him. 33. The Plainti/Applicant relies on the judicial decisions of Muigai versus Housing Finance Company of Kenya Limited and another (2002) 2KLR 332, Pius Kipchirchir Kogo vs Frank Kimeli Tenai [2018] eKLR and submits that the balance of convenience tilts in his favour. 34. The Defendant/Respondent submits that before ling the present suit, a complaint was lodged at the Land Dispute Tribunal and an award was made. 35. The Defendant/Respondent also submits that the award was adopted as an order of the Court in Kericho CM Misc. Application No. 2 of 2012. 36. The Defendant/Respondent further submits that thereafter, the Plainti/Applicant led Kericho Misc. Application No. 12 of 2012 which was a Judicial Review application. 37. It is the Defendant/Respondent’s submissions that the said Judicial Review application was not determined and the Plainti/Applicant thereafter led Kericho HC Case No. 36 of 2014 where he led an application seeking orders of injunction. 38. It is also the Defendant/Respondent’s submissions that the Plainti/Applicant abandoned the said application and withdrew the suit. 39. It is further the Defendant/Respondent’s submissions that the present suit was then led in the year 2015 and ten years later, the Plainti/Applicant led the application under consideration. 40. The Defendant/Respondent submits that since the Plainti/Applicant did not initially le an application seeking orders of injunction, then it can be construed to mean that he (Plainti/Applicant) has never been in possession of the suit parcel of land. 41. The Defendant/Respondent reiterates the averments in his Replying Adavit, relies on the judicial decision of Giella vs Cassman Brown [1973] EA 358 and submits that the Plainti/Applicant has failed to meet the pre-requisites for grant of the prayers sought in the application under consideration. 42. The Defendant/Respondent relies on Article 41 of the Constitution, Sections 23, 24, 25 and 26 of the Land Registration Act and submits that the suit parcel of land is registered in his name. 43. It is the Defendant/Respondent’s submissions that his rights over the suit parcel of land are protected under the law and the Court cannot issue an order of injunction against a registered proprietor. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6127/eng@2026-10-01 4

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44. The Defendant/Respondent relies on the judicial decision of Peter Njoroge Nganga versus Kenya Reinsurance Corporation Limited (Statutory Manager for United Insurance Company) & another [2018]eKLR and submits that since he has the title deed for the suit parcel of land, it is prima facie evidence that he is the legitimate owner of the land. 45. The Defendant/Respondent concludes his submissions by urging the Court to dismiss the Plainti/ Applicant’s application with costs. Analysis and Determination. 46. I have considered the Plainti/Applicant’s application, the response thereto and the rival submissions. It is my view that the following issues arise for determination; a. Whether the Plainti/Applicant has met the criteria for grant of an order of temporary injunction pending the hearing and determination of this suit. b. Whether entry No. 4 on the register for land parcel No. Kericho/Litein/560 should be cancelled. c. Who should bear costs of the application. a. Whether the Plainti/Applicant has met the criteria for grant of an order of temporary injunction pending the hearing and determination of this suit. 47. In the judicial decision of Giella v. Cassman Brown [1973] EA 358, the Court set out the conditions for grant of interlocutory injunctions. They are as follows; “ The conditions for the grant of interlocutory injunction are now I think well settled in East Africa. First an Applicant must show a prima facie case with probability of success. Secondly an interlocutory injunction will not be normally granted unless the Applicant might otherwise suer irreparable injury which would not adequately be compensated by an award of damages. Thirdly if the Court is in doubt it will decide an application on the balance of convenience.” (Emphasis mine) 48. The Plainti/Applicant must rst establish a prima facie case. A prima facie case was dened in the judicial decision of Mrao Limited vs. First American Bank of Kenya & 2 Others [2003] eKLR as follows; “ A prima facie case in a civil case include but is not conned to a “genuine or arguable” case. It is a case which on the material presented to the Court, a tribunal properly directing itself will conclude there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the later.” (Emphasis mine) 49. The Plainti/Applicant contends that he purchased a two-acre portion of land parcel No. from the Defendant/Respondent on 19th September, 1986. Kericho/Litein/560 50. The Plainti/Applicant also contends that he took possession of the said portion of land in December, 1986. 51. The Plainti/Applicant further contends that the Defendant/Respondent subdivided land parcel No. Kericho/Litein/560 into land parcel No’s Kericho/Litein/2742 and 2743. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6127/eng@2026-10-01 5

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52. It is the Plainti/Applicant’s contention that on 13th July, 2025, the Defendant/Respondent trespassed onto a portion of the land he is in possession of and begun to destroy the tea bushes he had planted thereon. 53. The Plainti/Applicant has attached to his adavit in support of the application a copy of a handwritten agreement between him and Daniel Kiplangat Chepkwony, the Defendant/Respondent. 54. The agreement states that the Defendant/Respondent had agreed to sell to the Plainti/Applicant land parcel No. Litein/560 at a consideration of Kshs. 27 per acre. 55. The agreement also states that the full purchase price was Kshs. 54,000/= and as at 7th September, 1986, Kshs. 20,000/= had been paid. 56. The Plainti/Applicant also attached black and white photographs of what he describes to be alleged destruction of tea bushes. 57. The Defendant/Respondent on the other hand contends that he is the owner of land parcel No. Kericho/Litein/560 which parcel of land was subdivided into land parcel No’s Kericho/Litein/2742 and 2743. 58. The Defendant/Respondent also contends that the Plainti/Applicant has never been in possession of the suit parcel of land. 59. It is not disputed that the Defendant/Respondent is the registered owner of land parcel No. Kericho/ Litein/560. 60. From the documents attached to the adavit in support of the application, it is evident that the Plainti/Applicant has an interest in the suit parcel of land. 61. It is therefore this Court’s view that that the Plainti/Applicant has established a prima facie case. 62. It is however important to note, that the nature and extent of the alleged interest the Plainti/ Applicant has in the suit parcel of land will be interrogated on its merits at the hearing and determination of the main suit. 63. The second condition for grant of orders of temporary injunction is that the Plainti/Applicant must demonstrate that he will suer irreparable injury that would not be adequately compensated by way of damages. 64. In Nguruman Limited vs. Jan Bonde Nielsen & 2 Others [2014] eKLR, the Court of Appeal pronounced itself as follows: “ On the second factor, that the Applicant must establish that he “might otherwise” suer irreparable injury which cannot be adequately remedied by damages in the absence of an injunction, is a threshold requirement and the burden is on the Applicant to demonstrate, prima face, the nature and extent of the injury. Speculative injury will not do; there must be more than an unfounded fear or apprehension on the part of the Applicant. The equitable remedy of temporary injunction is issued solely to prevent grave and irreparable injury; that is injury that is actual, substantial and demonstrable; injury that cannot “adequately” be compensated by an award of damages. 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.” (Emphasis mine) https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6127/eng@2026-10-01 6

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65. The judicial decision in Pius Kipchirchir Kogo vs Frank Kimeli Tenai [2018] eKLR provides an explanation of what is meant by irreparable injury. It is as follows; “Irreparable injury means that the injury must be one that cannot be adequately compensated for in damages and that the existence of a prima facie case is not itself sucient. The Applicant should further show that irreparable injury will occur to him if the injunction is not granted and there is no other remedy open to him by which he will protect himself from the consequences of the apprehended injury.” (Emphasis mine) 66. The Plainti/Applicant submits that he will suer economic loss if the prayers sought are not granted. 67. The Defendant/Respondent on the other hand generally submits that the Plainti/Applicant has not met the pre-requisites for the issuance of an order of temporary injunction. 68. In the circumstances of this suit, it is my view that the Plainti/Applicant has not demonstrated that he will suerirreparable damage which cannot be adequately compensated by way of damages if the orders sought are not granted. 69. If after making considerations on the existence of a prima facie case and irreparable injury the Court is still in doubt, then an application for temporary injunction is to be determined on the basis of balance of convenience. 70. The Plainti/Applicant has demonstrated that he has a prima facie case but has failed to demonstrate that he is likely to suer irreparable injury if the orders sought are not granted. I shall therefore determine this application on the basis of balance of convenience. 71. In Pius Kipchirchir Kogo v Frank Kimeli Tenai [supra] the Court held as follows; “ The meaning of balance of convenience will favour of the Plainti' is that if an injunction is not granted and the Suit is ultimately decided in favour of the Plaintis, the inconvenience caused to the Plainti would be greater than that which would be caused to the Defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience it is really the balance of inconvenience and it is for the Plaintis to show that the inconvenience caused to them will be greater than that which may be caused to the Defendants. Inconvenience be equal, it is the Plainti who will suer. In other words, the Plainti has to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than that which is likely to arise from granting it” 72. Even though the Plainti/Applicant has demonstrated that he has an interest in the suit parcel of land, the issue whether or not he is in possession of the suit parcel of land is contested. 73. The Plainti/Applicant contends that he has been in possession of a two-acre portion of land parcel No. Kericho/Litein/560 since December, 1986. The Defendant on the other hand disputes the Plainti’s contention states that the Plainti/Applicant has never possession of the suit parcel of land. 74. The Defendant/Respondent submits that he has always been in possession of the suit parcel of land to the exclusion of the Plainti/Applicant. 75. The issue whether or not the Plainti/Applicant is in possession of the suit parcel of land will be best addressed on its merits during the hearing and determination of the main suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6127/eng@2026-10-01 7

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76. Given the said circumstances, it is my view that the balance of convenience does not tilt in favour of the Plainti/Applicant. b. Whether entry No. 4 on the register for land parcel No. Kericho/Litein/560 should be cancelled. 77. Under prayer (6) of the application under consideration, the Plainti/Applicant is seeking that the Court issues an order cancelling entry No. 4 on the register for land parcel No. Kericho/Litein/560. 78. Neither of the parties made any submissions on this prayer. 79. It is my view that the said prayer is in the nature of a nal order which cannot be granted at this preliminary stage of the proceedings. c. Who should bear costs of the application 80. The general rule is that costs shall follow the event. This is in accordance with the provisions of Section 27 of the Civil Procedure Act (Cap. 21). 81. A successful party should ordinarily be awarded costs of an action unless the Court, for good reason, directs otherwise. Disposition. 82. Taking the foregoing into consideration, I nd that the Plainti/Applicant’s Notice of Motion application dated 31st July, 2025 lacks merit and it is hereby dismissed with costs. 83. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT KERICHO THIS 1ST DAY OF OCTOBER, 2026. L. A. OMOLLO JUDGE. In the presence of: Mr. Oduor for the Plainti/Applicant. Mr. Koko for the Defendant/Respondent. Court Assistant: Mr. Joseph Makori https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6127/eng@2026-10-01 8

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