https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3661

Mwande v Ecobank Kenya Limited & another & another (Environment and Land Case E126 of 2025) [2026] KEELC 3661 (KLR) (18 May 2026) (Ruling) Neutral citation: [2026] KEELC 3661 (KLR) Republic of Kenya In the Environment and Land Court at Malindi Environment and Land Case E126 of 2025 FM Njoroge, J May 18, 2026 Between Mariam Khamis Mwande Plaintiff and Ecobank Kenya Limited & another Defendant and Asha Kamene Salim Interested Party Ruling Application 1.The Notice of Motion dated 24th March, 2026 seeks the following orders:a.That the application be certified urgent and service be dispensed with in the first instance.b.The Honourable Court be pleased to extend its order for temporary injunction dated 3rd December 2025 until this application is heard and determined.c.That this Honourable Court upon hearing and determination of this application be pleased to extend the orders until hearing and determination of the main suit.d.That the Honourable Court be pleased to issue further directions in the matter.e.That the costs of this application be provided for. 2.The application is based on the following grounds:a.That this Honourable Court issued orders of temporary injunction against the defendants on the 3rd December 2025 which orders have not been vacated or varied.b.That the matter was scheduled for pretrial directions on the 18th February 2026, but unfortunately the court was not sitting due to power outrage.c.That the issue of the ownership of suit premises is highly contested flowing from the pleadings and any adverse action taken by either party will be preemptive and will jeopardize the substratum of the suit.d.That the 2nd Defendant has already advertised for the auctioning of the suit premises to proceed on the 27th March 2026 without flowing the due process.e.That the issue of ownership is critical to the proceeding that the status quo must be maintained until this matter is heard and determined.f.That in any event the plaintiff deposit for security of Kshs 500,000/- has not been released to date, despite the plaintiff frantic efforts to have the same released. The Response 3.The respondent filed an affidavit of John Mwonga, who is expressed to be its Head of Remedial Department, and which is dated 13th April 2026. Is that affidavit, it is stated as a preliminary issue that the application is fatally defective because it was filed without leave and in violation of Rules 3(1) and (2) of the High Court Practice and Procedure Rules. Secondly, it is averred that the interim injunction order issued on 3rd December 2025 was conditional and self-executing because it was only valid until either service of the statutory notice upon the plaintiff applicant was effected and the notice period expired, or upon hearing and determination of the suit, whichever came first. It is deponed that the first defendant served through its advocates on record upon the plaintiff the 40 days statutory notice as per Section 96(3) (e) of the Land Act on 11th December 2025 and filed a return of service in court. Those documents are exhibited in the replying affidavit in a bundle labeled as exhibit “JM4”. 4.It is stated that the statutory notice period started running from 11th December 2025 and lapsed simultaneously with the orders of 3rd December 2025 on 20th January 2026 when the 40 days provided for in the statute expired. It is stated that no orders are in force now, and there is nothing to be extended as suggested by the plaintiff applicant. That though the matter never came up for as scheduled on 19th February 2026, it was listed on 20th February 2026 when it came up before the judge in the absence of the plaintiff’s/applicant’s advocates and directions were issued. The present suit being a claim that stands not on ownership of the suit promises but rather or non-service or the statutory notice under Section 96(3)(e) of the Land Act, which omission has now been cured or rectified by service of the notice referred to in paragraph 8 of the Replying Affidavit as having been served, it is now overtaken by events. Consequently, the plaintiff who is a mere tenant and does not have any identifiable or registered or legal proprietary interest in the suit properties lacks locus standi. 5.This court has viewed the annextures to the replying affidavit which include an affidavit of service by one Patrick Ngaine wherein at paragraph 2 he deposes to having served the statutory notice dated 25th September 2024 on 11th December 2025 electronically upon the plaintiff via her known WhatsApp number and email address which are stated therein. A screenshot of the service upon the plaintiff showing the plaintiff’s telephone number is also exhibited with two ticks showing that it was received. A copy of the statutory notice dated 25th September 2024 is also exhibited and is addressed to the registered proprietor of the suit land but at the bottom it has indication that it is copied to the plaintiff in this suit Submissions 6.This court ordered the parties to file submissions but only the plaintiff filed submissions dated 12th May 2026. I have carefully read and considered those submissions during the preparation of this ruling. Analysis and Determination 7.In brief the submissions entreated this court to protect the rights of the applicant, and that it do issue an order of status quo. However, counsel for the applicant does not define what “status quo” he wishes to be preserved in his submissions. 8.First, I must disagree with counsel for the first and second respondents when he argues that the application is fatally defective for want of leave, it having been filed during the Easter vacation. The court record speaks for itself and I do not need to be labor the point. Leave was not necessary the application having been filed within the third term and prior to commencement of the vacation period. It is this court that opted, owing to the expressed urgency of the matter, to fix it for hearing during the vacation. That did not call for the applicant to go about filing an application for leave. 9.I will now rule regarding the substantive issues that have brought the parties to court in the application and so I will proceed to look at the merits of the application. 10.The application seeks that the status quo be maintained. It is not clear what the advocate for the applicant meant by asking that this court do issue and order of status quo. This court presumes that what the advocate seeks is an extension of the orders issued on 3rd December 2025. On 3rd December 2025 the court in its ruling in this matter gave the following orders:“That prayer number 3 in the application is granted under the following conditions whichever is earlier to last eithera.A until the plaintiff issued with the proper notice and the time therefore provided in section 96 3 has run till the end; orb.Until the hearing and determination of the present suit.” 11.This court has noted that there is no response which has been filed to the allegations made in the Replying Affidavit to the effect that the plaintiff was served with the requisite notice under Section 96(3)(e) of the Land Act on 11th December 2025, and that the notice period expired on 20th January 2026 when the 40 days provided for in the law expired. The consequence is that this court must take that assertion to be uncontroverted. 12.Consequently, if the notice was issued as required by law, then condition number (a) given in the orders issued by this court on 3rd December 2025 was fulfilled by the first and second defendants and the order of injunction sought in prayer number 3 of the application dated 16th September 2025 was automatically vacated at the end of the notice period. As the orders were automatically vacated by the happening of the condition precedent provided for, which was the issuance of prerequisite notice which has not been denied, then there is nothing to be extended, and an order of status quo, perchance it was made herein, would not avail the plaintiff. 13.The upshot of the foregoing is that the application dated 24th March 2026 lacks merit and it is hereby dismissed with costs. Also, since the suit was premised on lack of notice alone and the notice has now been issued, it is evident that the suit cannot stand and it is hereby struck out with no orders as to costs. DATED, SIGNED AND DELIVERED AT MALINDI ON THIS 18TH DAY OF MAY, 2026.MWANGI NJOROGE,JUDGE, ELC, MALINDI.