[2023] KEELC 18792 (KLR)
The court found that the applicants are currently in occupation of the disputed land, while the respondent holds the title document. To avoid prejudicing either party and to preserve the subject matter of the dispute, the court determined that the appropriate remedy is to maintain the status quo rather than grant...
Source-derived case information.
- Citation
- [2023] KEELC 18792 (KLR)
- Parties
- Plaintiff: Hassan Mwaringa; Plaintiff: Philemon Mwaringa & others; Defendant: Ibrahim Nyule Tsofa
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Malindi
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case E025 of 2023
- Procedural Posture
- Environment and Land Case / Ruling on Interlocutory Application for Injunctive Relief
- Outcome
- Status quo order granted; costs to applicants.
- Judges
- EK Makori
- Legal Topics
- Injunctive Relief, Status Quo Orders, Land Occupation Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hassan Mwaringa
Plaintiff
Philemon Mwaringa & others
Plaintiff
Ibrahim Nyule Tsofa
Defendant
Procedural Posture
Environment and Land Case / Ruling on Interlocutory Application for Injunctive Relief
Legal Issues
- 1 Whether the applicants are entitled to injunctive orders restraining the defendant from evicting, demolishing houses, or interfering with their possession of plot No 8861 MN/III pending determination of the suit.
- 2 Whether the court should issue status quo orders to preserve the subject matter of the dispute.
Ratio Decidendi
The court found that the applicants are currently in occupation of the disputed land, while the respondent holds the title document. To avoid prejudicing either party and to preserve the subject matter of the dispute, the court determined that the appropriate remedy is to maintain the status quo rather than grant injunctive orders. This approach aligns with established practice in land matters, where status quo orders are issued to prevent changes to the property pending the full hearing and determination of the suit. The court exercised its discretion under the Environment and Land Court Practice Directions to order that no eviction or demolition should occur until the case is resolved.
Court Disposition
Status quo order granted; costs to applicants.
Orders
- Status quo on land parcel No 8861 MN/III Timboni Kilifi to be maintained; no eviction or demolition of applicants' houses until determination of the suit.
- Costs awarded to the applicants.
Full Case Text
Judgment text and source record
24 paragraphs
Mwaringa & another v Tsofa (Environment & Land Case E025 of 2023) [2023] KEELC 18792 (KLR) (13 July 2023) (Ruling)
Neutral citation: [2023] KEELC 18792 (KLR)
Republic of Kenya
In the Environment and Land Court at Malindi
Environment & Land Case E025 of 2023
EK Makori, J
July 13, 2023
Between
Hassan Mwaringa
1st Plaintiff
Philemon Mwaringa & others
2nd Plaintiff
and
Ibrahim Nyule Tsofa
Defendant
Ruling
1. By an application dated April 11, 2023 the applicants seeks among other relief(s):i.Injunctive orders to issue against the defendant from evicting, demolishing the applicants’ houses, dispossessing them of their land, and/or interfering with the plaintiffs/applicants’ quiet possession of land known as plot No 8861 MN/III situated in Timboni, Kilifi county pending the hearing and determination of this suit.ii.OCS Kijipwa Police Station to assist in compliance.
2. The applicants through one Philemon Mwaringa have filed a replying affidavit detailing their occupation of the parcel of land spanning over 50 years.
3. The application was marked urgent on April 17, 2023 it was ordered for service and fixed for inter parte hearing on April 26, 2023.
4. On April 20, 2023 no replies had been filed. The court ordered further service to be done personally on the defendants. The matter was fixed for further hearing on May 4, 2023. No replies had been filed. The court ordered the status quo on the ground to be maintained and the applicants not to be evicted and fixed the same for inter parte hearing on June 5, 2023 with the respondents granted 21 days to reply.
5. On June 5, 2023 the respondent through Amina Advocate said they had filed responses that morning and sought leave to have averments filed admitted. Counsel Khisia for the applicants vehemently opposed the same. The court directed that it was to look at the material placed before it and render a determination.
12. Having considered the material I have before me, the applicants seem to be on the ground. The title document seems to be in the possession of the respondent. To preserve the substratum of the suit that is the land in question claimed by both parties and based on the circumstances I have which do not favour issuance of injunctive orders, under the Environment and Land Court Practice Directions 2014, this court has been granting status quo orders to preserve the subject matter pending the full determination of the suit see for example Onguto J. in Thugi River Estate Limited & another v National Bank of Kenya Limited & 3 others [2015] eKLR:“In land matters the maintenance of status quo order is now literally synonymous with the proceedings. As was held by the Court of Appeal in the case ofMugah v Kunga [1988] KLR 748, in land matters status quo orders should always be issued for purposes of preserving the subject matter. This court’s practice directions vide Gazette NoticeNo 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 the status quo to be maintained until the determination of the case. I however take note that the gazette notice was issued before this court’s July 16th 2014 decision.The end result is that status quo orders will issue not just when the court is prompted by way of formal applications for injunction or conservatory or stay orders: see Texaco Ltd v Mulbery Ltd[1972]1 WLR 814, but also when the court is of the view that as a case management strategy, it would be more proportionate and appropriate without prejudicing one party but both, to issue a “status quo” order.”
6. The orders which commend for issuance to me are as follows:i.Status quo on land parcel Nos 8861 MN/III Timboni Kilifi to be maintained. That is no eviction of the applicants or demolition of their houses shall be undertaken until the current suit is heard and determined.ii.Costs to the applicants.
DATED, SIGNED, AND DELIVERED AT MALINDI VIRTUALLY IN OPEN COURT ON THIS 13THDAY OF JULY 2023E.K. MAKORIJUDGEIn the presence of:Mr. Khisia for the PlaintiffMs. Amina holding brief for Mureithi for the DefendantsCourt Clerk: Happy