https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4795

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAPSABET** **ELC CASE NO. E029 OF 2022** **​DAVID KOMEN KAPKOMOI................................APPLICANT/PLAINTIFF** **​-VERSUS-** **PHILOMENA JELAGAT KORIR ALIAS FLOMENA JELAGAT MULWO ………………………………………………… RESPONDENT/DEFENDANT** **RULING** 1. The applicant/plaintiff throughJerobon Linet and Company Advocates filed the application by way of a Notice of Motion dated 29th April 2026, for the orders that; 2. Spent 3. Spent 4. The Honourable Court be pleased to issue an injunction restraining the Respondent from selling, subdividing or transferring ownership of the suit property No. **Nandi/Ndalat Settlement Scheme/908** (The suit property herein) pending hearing and determination of the main suit. 5. Spent 6. The Honourable Court issue an order that status quo of this institution of this suit be maintained pending hearing and determination of the main suit. 7. Costs of this application be provided for in the cause. 8. The application is rooted in the applicant’s affidavit of eleven paragraphs and the accompanying documents namely a copy of summons to attend the caution hearing (DKK-1) and a copy of a certificate of official search (DKK-2) pertaining to the suit property alongside the grounds which include; 9. That, the Respondent has since sold a portion of the suit property to a third party and conducted a survey on Thursday 23rd April 2026 with the intention of subdividing and transferring the portion which action will cause the alienation of the suit property. 10. It is obvious that the Respondent is very keen on ensuring that the prevailing status quo in the registry is dislodged to frustrate the suit and the enforceability of the outcome of the claim should it succeed. 11. The defendant/respondent through Koech-Lelei and Company Advocates filed a replying affidavit of fourteen paragraphs sworn on 4th June 2026 opposing the application. She averred in part, that she has never sold any portion of the property to the Plaintiff. That the Plaintiff is a stranger to her. That it is not in dispute that the Defendant is a bona-fide sole registered and lawful owner of the suit property. 12. Also, the respondent’s asserted that the application has not met the threshold of granting the prayers therein. That the application is unmerited and an abuse of the process of the court hence, be dismissed with costs. 13. By the submissions dated 16th June 2026 by learned counsel for the applicant, reference is made to the application and the orders sought therein. Counsel summarized the applicant’s case that the applicant is a purchaser and in occupation of the suit property without interference since the year 2013. That the respondent moved to have the caution over the suit property removed hence precipitating the application. That the respondent’s case include that she is the registered proprietor of the suit land and that the applicant is a stranger to her. 14. Counsel framed three issues for determination including whether the injunctive relief is merited and whether the status quo ought to be maintained in the suit. In analyzing the issues in favour of maintenance of status quo order in terms of the register of the suit property and the occupation of the property, reliance was made on **Giella vs Cassman Brown & Co. Ltd (1993) EA and Nguruman Ltd vs Jan Bonde Nielsen & 2 others (2014) eKLR,** among others. 15. In the submissions dated 3rd July 2026, learned counsel for the respondent referred to the orders sought in the application, set out the parties’ respective cases and delineated triple principles including establishment of a prima facie case guiding the court in deciding on whether to grant or deny the principal order of injunction sought in the application. The principles were discussed in the positive as it was submitted that the applicant is a stranger with no right over the suit property. 16. To fortify the submissions, counsel relied on the celebrated case of **Giella (supra)** alongside the case of **Sena & 25 others vs Cheruiyot & 80 others {2026} KEELC 903 (KLR)** on the principles. It was therefore, submitted that the applicant being a trespasser on the suit property, the application be dismissed with costs. 17. In that regard, has the applicant established the threshold for the prayers in the application? 18. Notably, the application is expressed to be commenced under, inter alia, sections 1A, 1B, 3 and 3A of the Civil Procedure Act Chapter 21 Laws of Kenya and this court is guided by sections 3 and 13 (7) of the Environment and Land Court Act 2015 (2011) alongside Order 40 of the Civil Procedure Rules, 2010 which govern inter alia, interim preservation orders inclusive of temporary injunction and temporary orders. An injunction is an equitable and discretionary remedy as held in the case of **National Bank of Kenya Limited -vs- Shimmers Plaza Limited [2009] eKLR.** 19. The triple principles guiding the court on whether to grant the principal order sought in the application are founded upon **Giella and Nguruman cases (supra)** where the Court of Appeal remarked; *“……..in an interlocutory injunction application, the applicant has to satisfy the triple requirements to a, establishes his case only at a prima facie level, b, demonstrates irreparable injury if a temporary injunction is not granted and c, ally any doubts as to b, by showing that the balance of convenience is in his favour.* *These are the three pillars on which rests the foundation of any order of injunction interlocutory or permanent. It is established that all the above three conditions and states are to be applied as separate distinct and logical hurdles which the applicant is expected to surmount sequentially*” (Emphasis added) 1. Notably, in the case of **Hutchings Biemer Ltd v Barclays Bank of Kenya Ltd & 2 others [2006] eKLR,** the Court of Appeal reasoned: *“…In our view, injunctive orders are meant to preserve property and maintain the status quo...”* 1. This court has the mandate under section 13 (7) of the Environment and Land Court Act, 2015 (2011) to grant interim preservation orders over the suit property. The same include status quo orders to preserve the subject matter pending the determination or termination of the suit as held in the case of **Ogada -vs- Mollin (2009) KLR 620**. 2. The contention of the applicant is that he deserves the injunction order. On the other hand, the respondent considers the applicant a trespasser over the suit propertys. So, the issues in the suit and the application are highly contested calling for hearing of the suit. 3. It is therefore, my considered view of that what is merited at this interim stage of the suit, is a status quo order rather than the temporary injunctive relief sought in the application, to preserve the suit property pending the hearing and determination of the suit or until it is terminated; see also **Musa Angira Angira - vs-ICDC (2015) KLR.** 4. Thus, it is imperative to preserve the suit land, in the interim, for fair hearing of the suit as noted in, inter alia, **Articles 50 (1),** **section 13 (7) (a), Ogada, Angira cases (all supra)** pending the outcome of the suit for the ends of justice. 5. In the result, the application dated 25th April 2026 is partially merited hence, prayer number 5 allowed for interim preservation order as given on 26th May 20026 herein on the following terms; 6. That an order of status quo over the suit property pending the hearing and determination of this suit, be maintained by the parties. In particular, the parties shall not sell, charge, transfer, sub divide, dispose of or alienate any portion of the suit land in any manner or erect any permanent structures thereon pending the outcome of this suit. 7. Costs of the application be in the cause. 8. It is so ordered. **Dated** and **Delivered** at **Kapsabet** this 22nd day of July 2026. **HON. G M A ONGONDO** **JUDGE** **In the presence of;** Walter, court assistant