https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3095

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT ELDORET** **ELC LAND APPEAL No. E039 OF 2022** **SAMSON ATEKA ONYANCHA** …….. **1ST APPELLANT/RESPONDENT** **ABIUD OBORA ONYANCHA** ……….. **2ND APPELLANT/RESPONDENT** **VERSUS** **DAVID SONGOK LAGAT** …………………. **RESPONDENT/APPLICANT** **RULING:** 1. This ruling is with respect to the Respondent/Applicant’s Notice of Motion Application dated 24th October, 2025 which seeks for orders that:- 2. Spent 3. Spent 4. There be a stay of execution of the Judgment and Decree in Samson Ateka Onyancha & Abiud Obora Onyancha vs David Songok Lagat, Appeal E039 of 2022 (2025) KEELC 672 (KLR), delivered on 20th February, 2025 in Eldoret, pending the hearing and determination of this application then after pending the hearing and determination of the intended appeal. 5. There be orders of status quo ante being that no party should utilize the parcel obtaining in the pendency of this appeal to continue in the course of hearing and determination of the intended appeal in the court of appeal. 6. The costs of this application be in the cause. 7. The application is supported by the Respondent’s Affidavit sworn on 19th September, 2025 in which he deponed that he was seeking a stay of the judgment delivered by this court on 20th February, 2025. He deponed that on 27th February, 2025 he lodged a Notice of Appeal against the said judgement. He stated that as at the date of the Affidavit, he had yet to file the Memorandum of Appeal and the Record of Appeal, but intended to do so within the prescribed timeline. He averred that the appeal raises triable issues with high chances of success. 8. The Respondent deponed that if the stay is not granted, the Appellants may execute the judgment of this court as well as the lower court causing him irreparable harm. That the harm to be suffered includes loss of proprietary interest in the land, costs of reversing executed action and other consequences, which will be difficult or impossible to remedy if the appeal succeeds. He explained that this court had on 15/2/2017 issued an order of status quo, which status is on the verge of being interfered with. 9. The Respondent asserts that the application was brought expeditiously. He expressed willingness to give such security as the court may direct. He deponed that the Appellants will suffer no prejudice since he deposited the contractual balance of KShs. 750,000/- in court as a sign of good faith. He added that the application itself has been made in good faith. 10. The Appellants opposed the application through a Replying Affidavit sworn by Samson Ateka Onyancha, the 1st Appellant. He deponed that the application is fatally defective, does not raise triable issues, is frivolous, vexatious and inter alia an abuse of the court process. He averred that the Respondent had not met the required threshold for grant of an order of stay of execution per Order 42 Rule 6(4) of the Civil Procedure Rules. He averred that the Respondent will suffer no prejudice as he was directed to institute fresh proceedings in the lower court for recovery of part of the purchase price. 11. The 1st Appellant urged that part of the consideration cannot be converted into security since it forms part of the impugned judgment, and converting it will be reviewing the said judgment. He averred that they do not intend to sell the suit property and the Respondent had adduced no evidence to that effect. He contended that the status quo order changed upon the trial court rendering its judgment, and upon the judgment of this court on appeal. Further, that there is no certificate of taxation to be stayed. **Submissions:** 1. The application was canvassed by way of written submissions. The Respondent/Applicant filed Submissions dated 4th December, 2025 and Supplementary Submissions dated 22nd April, 2026 in support of the Application. The Appellants/Respondents filed Submissions dated 20th February, 2026 and Supplementary Submissions dated 11th March, 2026 opposing the application. ***The Respondent/Applicant’s Submissions;*** 1. In the main submissions, Counsel for the Respondent submitted that the cumulative requirements for stay are set out at Order 42 Rule 6(2) and are affirmed in ***Shell Ltd vs Benjamin Karuga Kibiru (1986) eKLR***. Counsel submitted that judgment was delivered on 20th February, 2025 and the Notice of Appeal filed on 27th February, 2025, thus the present application was filed within a reasonable period and satisfies the requirement on time under Order 42 Rule 6(2). Counsel cited ***Njoroge & Another vs Malweyi & Another (Civil Appeal E243 of 2024)(2024) KEHC 16207 (KLR)***. Counsel submitted that the Appellants have filed a Party and Party Bill of Costs both in the lower court and in this court, signalling imminent execution. 2. Counsel contended that the Appellants may dispose of the land subject of the intended appeal rendering it nugatory. Counsel cited ***Reliance Bank Ltd vs Norlake Investments Ltd (2002) EA 227****,* and submitted that property in land matters is unique and irreplaceable, thus courts lean in favour of preservation to avoid irreversible injustice. On security, Counsel submitted that the Respondent had demonstrated willingness to provide security. Counsel pointed out that the Respondent had already deposited KShs. 750,000/- in court to demonstrate good faith, and in compliance with Order 42 Rule 6(2)(b). On the issue of security, Counsel cited the case of ***Arun C. Sharma vs Ashana Raikundalia (2014) eKLR***. 3. Counsel argued that the Court has power to preserve the suit property through status quo orders and to ensure just, expeditious and proportionate resolution of justice under Sections 1A and 1B of the Civil Procedure Act. Counsel cited ***Suleiman vs Amboseli Ltd*** and contended that where there is risk of alienation, Courts must preserve the property. Counsel argued that the Appellants will neither be prejudiced nor will the judgment be affected. Counsel referred to the Draft Memorandum of Appeal, and submitted that the appeal raises triable and arguable grounds and is not frivolous. Counsel also argued that the balance of justice lies with granting the stay. 4. Counsel claimed that the Respondent has fully satisfied the requirements for stay under Order 42 Rule 6(2), and the Appellants will suffer no prejudice. Counsel submitted that an order of stay extends to all components of the decree, including the costs. Counsel told this court that the Appellants had initiated and completed the process of taxation, which is a precursor to execution. Counsel reiterated that if execution proceeds, the Respondent will suffer prejudice. Counsel further argued that allowing the execution for costs would partially defeat the need to preserve the suit property, and render the appeal nugatory. 5. As regards the issue of representation under Order 9 rules 5 and 9, Counsel submitted that there has been no substantive change of advocate within the meaning of the said provisions. Counsel argued that the variation in the firm names arises from administrative restructuring/rebranding, and not introduction of a new advocate. Counsel argued that there is thus no need for leave or compliance with Order 9 Rule 9. Counsel argued that the objection on that front is technical and no prejudice had been suffered by the Appellants. In support of the arguments in the supplementary submissions, Counsel additionally cited ***National Industrial Credit Bank Ltd vs Aquinas Francis Wasike & Another (2006) eKLR***, ***Absalom Dova vs Turbo Transporters (2013) eKLR*** and ***RWW vs EKW (2019) eKLR***. ***The Appellants/Respondent’s Submissions;*** 1. On behalf of the Appellants, Counsel submitted that the application had been filed by the firm of J.K. Kaptich & Associates Advocates, which is a stranger to the proceedings, and is contrary to Order 9 Rules 5 and 9 of the Civil Procedure Rules. That no Notice of Change of Advocates was filed. Further, since judgment was delivered, the new advocates ought to have complied with Order 9 Rule 9, and sought leave from this court to come on record, or sought consent of the outgoing advocate. 2. Counsel argued that the application was therefore fatally defective and an abuse of court process and should be dismissed. Counsel submitted that the present application was filed unprocedurally and is invalid. Counsel contended that the application cannot be cured by the oxygen principles or Article 159 of the Constitution and should be struck out. Counsel cited ***Symposia Consul Limited vs George Gikere Kaburu & 2 Others (2018) eKLR***, ***Kithinga & Another vs Kithinga & Another (2024) KEHC 13672 (KLR)*** and ***Monica Moraa vs Kenindia Assurance Co. Ltd (2012) KEHC 5510 (KLR)***. 3. On the stay of execution, Counsel submitted that the Respondent ought to demonstrate that unless stay is granted, he will suffer substantial loss. Counsel submitted that the Respondent will not suffer substantial loss since the court directed that he should file a fresh suit to claim the partial consideration he had paid. Counsel argued that the Respondent would thus recover what he had paid even if stay is not granted. On time, Counsel submitted that judgment was delivered on 20th February, 2025 while the present application was filed on 24th October, 2025 eight months later. That no explanation has been given for this delay, hence it fails on this limb. 4. As regards the element of security, Counsel submitted that the Respondent had not tendered any security. Counsel argued that security is not what the court dictated it to be, but comes from the Applicant to the successful party as security for the due performance of the decree. Counsel submitted that an order of stay can only be granted to deserving parties on meeting the threshold, and cannot rely on Sections 1A and 1B of the Civil Procedure Act or Article 159 of the Constitution. Counsel asked the court to dismiss the application with costs. 5. Counsel relied on the cases of ***James Wangalwa & Another vs Agnes Naliaka Cheseto (2012) eKLR***, ***Silverstein vs Chesoni (2002)1 KLR***, ***Mukuma vs Abuoga***, ***Stanley kangethe Kinyanjui vs Tony Ketter & 5 Others (2013) eKLR***, ***Hamisi Juma mbaya vs Amekecho Mbaya (2018) eKLR***, ***Butt vs rent Restriction Tribunal; Civil Application No. Nai 6 of 1979***, ***Kombo Hassan Kombo (Suing as the Administrator of the Estate of Mwishali Kombo Mwinyihaji) vs Omar Said Abdalla & Another (2020) KEELC 1546 (KLR)*** and ***Mabu Commodities Limited vs Nakitende (Miscellaneous Application No. 530 of 2020) (2023) UGHCCD 43***. 6. In the Appellants’ Supplementary Submissions, Counsel submitted that having contravened Order 9 Rule 9, the instant application is void and a nullity, thus incurably defective and the court cannot exercise its discretion on it. In support, Counsel cited ***Macfoy vs United Africa Co. Ltd (1961)3 All ER***. With regards to the prayer to stay the execution of costs, Counsel submitted that a money decree cannot be subject of a stay order. Counsel concluded that aside from the application being defective, a stay order cannot be granted in respect of costs. Counsel reiterated that the application lacks merit and ought to be dismissed. Counsel further cited ***Jagar Singh vs Runda Coffee Estates Ltd (1960) E.A 263***, ***Kenya Shell Ltd vs Benjamin Karuga (Supra)***, ***Francis Kabaa vs Nancy Wambui & Another, Civil Application No. Nai 298 of 1996 (UR)*** and ***Josephine Moraa vs Ken Sagini & 8 Others (2010) KEHC 2090 (KLR)***. **Analysis and Determination** 1. I have carefully considered the Application alongside its Supporting Affidavit, the Replying Affidavit and the Submissions filed by the parties respective Advocates. The issues which arise for determination are: 2. *Whether the firm of J.K. Kaptich is properly on record;* 3. *Whether this court should stay the execution of its Judgment/Decree dated 20th February, 2025;* 4. *Whether the Court should issue an order of status quo; and* 5. *Who shall bear the costs of this application?* 6. **Whether the firm of J.K. Kaptich is properly on record** 7. I must first point out that this issue of representation was not included in the Replying Affidavit, but was only raised in the Appellants’ submissions. It however goes to the root of the Court’s jurisdiction to entertain the application, and for this reason, the court will proceed to determine it. 8. The objection as raised by the Appellants is that the firm of J.K. Kaptich & Associates Advocates is a stranger to these proceedings having not been on record prior to the judgment. The Appellants’ objection is premised on Order 9 Rules 5 and 9 of the Civil Procedure Rules which provide that:- ***5. Change of advocate [Order 9, rule 5]*** ***A party suing or defending by an advocate shall be at liberty to change his advocate in any cause or matter, without an order for that purpose, but unless and until notice of any change of advocate is filed in the court in which such cause or matter is proceeding and served in accordance with rule 6, the former advocate shall, subject to rules 12 and 13 be considered the advocate of the party until the final conclusion of the cause or matter, including any review or appeal.*** ***9. Change to be effected by order of court or consent of parties [Order 9, rule 9]*** ***When there is a change of advocate, or when a party decides to act in person having previously engaged an advocate, after judgment has been passed, such change or intention to act in person shall not be effected without an order of the court—*** ***(a) upon an application with notice to all the parties; or*** ***(b) upon a consent filed between the outgoing advocate and the proposed incoming advocate or party intending to act in person as the case may be.*** 1. The Respondent was at the time of filing the Appeal represented by the firm of Nyaundi Tuiyott & Company Advocates. It would appear that as at the time of judgment all through to filing of the Notice of Appeal and this present application, the Respondent was still represented by the said firm. Even the two sets of submissions filed on behalf of the Respondent were drawn by the firm of Nyaundi Tuiyott & Company Advocates. 2. However, the Firm of J.K. Kaptich has been appearing and acting on behalf of the Respondent. A perusal of the court file demonstrates that it is the firm of J.K. Kaptich that paid the Court Filing Fees for the Notice of Appeal and was issued with a receipt on 27th February, 2025. The firm of J.K. Kaptich is also the one that paid for the typed proceedings of this court on 27th March, 2025. 3. The law under Order 9 Rule 5 clearly provides that a party is at liberty to change their advocates, but makes it necessary that a party file a Notice of Change of Advocates when doing so. However, nothing on the record shows that a Notice of Change of Advocates was ever filed with respect to this change. 4. By way of explanation, the Respondent’s advocates told this court that there was no change of advocate in the strict sense of the word, and explained that the change was due to an administrative restructuring of the firm of Nyaundi Tuiyott & Company Advocates. Counsel for the Respondent also asserted that there was no need to seek leave to come on record, or to obtain consent. 5. In a bid to resolve this issue of representation, I have perused the court file and noted that while the receipt for typed proceedings mentioned above was issued to the firm of J. K. Kaptich & Associates Advocates, the Application for typed proceedings itself was done through a letter dated 27th February, 2025 by the firm of Nyaundi Tuiyott & Co. Advocates. Similarly, although the receipt for court Filing Fees with the regard to the Notice of Appeal was issued to the firm of J.K. Kaptich & Associates Advocates, the Notice of Appeal itself is drafted by the firm of Nyaundi Tuoiyott & Company Advocates. 6. It goes without saying court is not seized of knowledge of private operations of the advocates who appear before them or the law firms through which they practice. It is for this reason that in practice, advocates have taken to filing a notice of change of advocates even where the change arises because the same firm has undergone a change of name through such restructuring. While it is not mandatory to do so, it is important to avoid situations such as this where the Advocates appearance is questioned in court. 7. Nevertheless, I am constrained to believe that the Respondent’s advocate claim that it is still the same firm representing the Respondent in this suit. Consequently, the objection by the Appellants as to the representation of the Respondent by the firm of J.K. Kaptich and Associates Advocates cannot stand, and the court hereby finds that the said firm is properly on record. 8. **Whether this court should stay the execution of its Judgment/Decree dated 20th February, 2025.** 9. The Respondent herein seeks a stay of execution of the judgment and decreed issued by this court on 20th February, 2025 pending the hearing and determination of his intended appeal to the Court of Appeal. The Respondent has brought the present application under Order 42 Rule 6(1) & (2) of the Civil Procedure Rules, which provides that:- ***6. Stay in case of appeal [Order 42, rule 6]*** ***(1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside.*** ***(2) No order for stay of execution shall be made under subrule (1) unless—*** ***(a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and*** ***(b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.*** 1. I have taken time to read the judgment delivered on 20th February, 2025. In doing so, I have also noted the nature of the orders made in the said judgment. In my considered view, before descending into whether the Respondent has met the threshold for stay, this court must first determine whether the order of stay of execution sought is tenable. 2. For the sake of clarity, the orders made in the said judgment are as follows:- ***“a). The appeal is allowed and the judgment delivered on 4th November 2022 in Eldoret CM ELC No. 309 of 2018 is hereby set aside and substituted with an order dismissing the suit with costs.*** ***b). In the interest of justice, the Respondent is granted leave to institute fresh proceedings in the lower court for recovery of part of the purchase price paid to the 2nd Appellant.”*** 1. The effect of the order (a) above is that the suit in the lower court was dismissed with costs. The court in its dismissal did not order the Respondent or even the Appellants herein to do or refrain from doing any action, thus it is incapable of execution. In effect, the parties remain in the same position they were in before they approached the trial court. The nature of a dismissal order was explained by the Court of Appeal in ***Kenya Commercial Bank Limited vs******Tamarind Meadows Limited & 7 Others (2016) eKLR***, quoted with approval the holding in ***Raymond M.******Omboga vs Augustine Pyan Maranga Kisii HCCA No. 15 of 2010***, where the it was held that: ***“The Order dismissing the application is in the nature of a negative order and is incapable of execution save, perhaps, for costs and such order is incapable of stay. Where there is no positive order made in favour of the respondent which is capable of execution, there can be no stay of execution of such an order… The applicant seeks to appeal against the order dismissing his application. This is not an order capable of being stayed because there is nothing that the applicant has lost. The refusal simply means that the applicant stays in the situation he was in before coming to court and therefore the issues of substantial loss that he is likely to suffer and or the appeal being rendered nugatory does not arise…”*** 1. The effect of a dismissal order was further discussed in the case of ***Western College of Arts and Applied Sciences vs EP Oranga & 3 others (1976) KECA 15 (KLR)***, where the Court of Appeal whilst considering whether an order of stay can be granted in respect of a negative order stated:- ***“But what is there to be executed under the judgment, the subject of the intended appeal? The High Court has merely dismissed the suit, with costs. Any execution can only be in respect of costs… In the instant case, the High Court has not ordered any of the parties to do anything, or to refrain from doing anything, or to pay any sum. There is nothing arising out of the High Court judgment for this Court, in an application for a stay, it is so ordered.”*** 1. The order dismissing the Respondent’s suit is therefore in the nature of a negative order and is incapable of being stayed, save perhaps, for costs. In any event, although the party and party bill of costs was taxed on 21st November, 2025, I have seen no Certificate of Taxation to indicate that execution on same is imminent. 2. As regards the leave granted to the Respondent to institute a fresh suit at order (b) of the judgment, the said leave only operates to allow the Respondent file a fresh suit in the lower court, should he so wish, to recover the part of the purchase price paid to the 2nd Appellant herein. A stay in this regard would entail a temporary pause, preventing the party who obtained the leave from officially filing or progressing the lawsuit until the intended appeal is heard. 3. Notably, the party that was granted leave is the Respondent herein, who also happens to be the one seeking stay. It is inconceivable that the Respondent would be seeking an order of stay to essentially bar himself from instituting the fresh suit. 4. In any event, the leave granted did not direct the Respondent in mandatory terms to file the fresh suit. He has permission only to do so if he so wishes, but is not mandated to file the suit. In other words, he can choose whether or not to file the suit. For this reason, the said order, not being a positive order itself that directs the doing of a certain act, equally cannot be stayed by this court. 5. **Whether the Court should issue an order of status quo** 6. Aside from the order of stay, the Respondent has also asked the court to issue orders of status quo ante. The term status quo is defined **Black’s Law Dictionary 9th Edn**. to mean ‘the situation as it exists’. In ***Kenya Airline Pilots Association (KALPA) vs Co-operative Bank of Kenya Limited & Another (2020) KEHC 1672 (KLR)***, defined a status quo order as follows:- **“6. In *Msa Misc Appln. (JR) No. 26 of 2010 The Chairman Business Premises Tribunal at Mombasa Exparte Baobab Beach Resort (Mbsa) Ltd (UR)*, it was held: -** ***‘In my view, an order for status quo to be maintained is different from an order of injunction both in terms of the principles for grant and the practical effect of each. While the latter is a substantive equitable remedy granted upon establishment of a right, or at interlocutory stage, a prima facie case, among other principles to be considered, the former is simply an ancillary order for the preservation of the situation as it exists in relation to pending proceedings before the hearing and determination thereof.*** ***It does not depend on proof of right or prima facie case. In its effect, an injunction may compel the doing or restrain the doing of a certain act, such as, respectively, the reinstatement of an evicted tenant or the eviction of the tenant in possession. An order for status quo merely leaves the situation or things as they stand pending the hearing of the reference or complaint. In its negative form, however, an injunction may have the same effect as an order for status quo’.*”** 1. It is trite law that status quo order is meant to preserve the property in dispute pending the outcome or termination of the case. The power of the court to grant such an order is derived at Section 13(7)(a) of the Environment and Land Court Act, which allows the court to grant interim preservation orders, under which an order of status quo is no doubt envisaged thereunder. 2. The purpose of an order of status quo was given in the case of ***Mugah vs Kunga (1988) KLR 748****,* where Court of Appeal stated thus:- ***“Status quo orders should always be issued for purposes of preserving the subject matter. This court’s practice direction vide Gazette Notice No. 5178/2014 have followed suit. Practice direction No. 28(k) is relatively clear. It gives the court the leeway and discretion to make an order for status quo to be maintained until determination of the case.”*** 1. As to the circumstances in which a court may grant an order of status quo, in ***Monica Mukuhi Khirrecu & another vs Caleb Omboga Moturi (2021) KEELC 912 (KLR)***, the court held thus:- ***“From the above cases, the following matters relating to status quo orders are emergent:*** ***First, that status quo orders can be made by the court on its own motion in exercise of its general jurisdiction. As such, the Appellant’s assertion that the orders have to be specifically prayed is incorrect… In the interest of balancing the scales of justice prior to the site visit, the trial court deemed it fair to grant status quo orders, which it is perfectly entitled of doing in exercise of its general discretionary powers.*** ***Secondly, that status quo orders can be issued for the purpose of preserving the subject matter of the property, for case management reasons and in a bid to prevent prejudice from being visited against either party to the case… The status quo orders were thus to freeze any activities that might imperil the final outcome of the case by preserving the subject matter as is, pending the hearing and final determination of the main suit.*** ***Thirdly, that status quo orders are different from injunctions, meaning that the considerations to be established for grant of injunctions are not necessary under status quo orders… Indeed… in certain circumstances, a prohibitory injunction may end up having the same effect as an order for status quo. This does not however mean that an injunction and a status quo order are one and the same thing…*** ***Lastly, that decision in Thugi River Estate Limited & another vs National Bank of Kenya Limited & 3 others (2015) eKLR requires a court originating status quo orders to explicitly frame the state of affairs to be preserved.”*** 1. Since an order of status quo is meant to preserve existing state of affairs, it is necessary that when a court of law orders that the status quo be maintained, it ought to interpret the existing factual scenario or circumstances as at the time when the order is made. This was properly captured in ***Thugi River Estate Limited & Another vs National Bank of Kenya Limited & 3 Others (2015) eKLR***, where the Court held that:- ***“I have indicated that the court was entitled to make an order for status quo. However, such orders are not to be in a vacuum. The court should have ensured that there was a clear description of the status quo being maintained. I would therefore interfere in a limited manner by clearly defining the status quo. I would however not vacate the order for status quo in its entirety as it was made in the course or process of case management. I would ensure that such orders are intact but with appropriate variation to ensure that the state of affairs as at 16th July, 2014 is kept in situ and intact.”*** 1. If I understand the Respondent well, the intent of the status quo order he seeks is to the effect that no party should utilize the suit property in the course of hearing and determination of the intended appeal in the court of appeal. Therefore, it is necessary to determine what the status quo is at the moment. 2. None of the parties herein endeavoured to explain to the court what the current status quo on the suit property is. Going through the proceedings included in the record of appeal (page 91), it appears that there was indeed an order of status quo order made by way of consent on 27th April, 2016 before Justice Ombwayo. The status quo order was to remain until hearing and determination of the suit. The status quo was not defined, therefore, it is not clear what the status quo at the time was. The only thing that is certain is that the land always was, and still is, registered in the name of the 1st Appellant. 3. On further reading the proceedings of the trial court, I note that the Respondent in his examination in chief asked the court to allow him to enter the land, meaning that at that point, he was not in occupation. He however conceded that there were people farming on the land, but it was not explained who these people were, or on whose authority they were on the land. 4. It is clear to me then, that what the Respondent seeks is not a status quo per se, but an order of injunction to restrain both he and the Appellants from accessing the land. If that is the case, he should have come out clearly in his Application and said so, instead of seeking the injunction through the back door. It is also clear that issuing the order as sought would result in evicting the people on the land without them being heard, which action the rules of natural justice does not allow this court to do. 5. The status quo order issued during the hearing of the main suit lapsed upon delivery of the judgment on 4th November, 2022. It has been over 4 years since the judgment of the trial court was entered and the order lapsed. There is no telling who is currently on the suit property, or what exactly the status quo was at the time the present application was filed. The Court is not in a position to issue an order of status quo in vain, which is what it shall be since it is not clear what order sought or enforcement thereof would entail. Owing to the above reasons, the order as framed by the Respondent is untenable and cannot issue. 6. **Who shall bear the costs of this application?** 7. On the issue of costs, the general rule is that costs shall follow the event in accordance with the provisions of Section 27 of the Civil Procedure Act (Cap. 21). A successful party should ordinarily be awarded costs of an action unless the court, for good reason, directs otherwise. 8. Any departure from this general rule can only be for good reasons as was explained by the Supreme Court in ***Jasbir Singh Rai & Others vs Tarlochan Rai & Others [2014] eKLR***. Good reason may include instances where the matter was a public interest litigation among other justified reasons. 9. In this instance, the Respondent instituted the present Application but has not succeeded in prosecuting it. The Appellants have therefore emerged the obvious victors, and are entitled to costs of the same. I see no reason why the Appellants should be denied their costs herein, and proceed to award them the costs of the present Application. **Orders:-** 1. Ultimately, I find no merit in the Respondent/Applicant’s Notice of Motion Application dated 24th October, 2025 and proceed to dismiss it with costs to the Appellants/Respondents. 2. Orders accordingly. **DATED**, **SIGNED** and **DELIVERED** virtually at **ELDORET** on this **21ST** day of **MAY**, **2026** vide Microsoft Teams. **HON. C. K. YANO** **ELC, JUDGE** In the virtual presence of; Mr. Songok for Respondent. Mr. Rotich holding brief for Mr. Mathai for Appellants. Court Assistant - Laban.