[2023] KEELC 22087 (KLR)

Ndehi & another v County Government of Nairobi & another (Environment and Land Appeal 50 of 2019) [2023] KEELC 22087 (KLR) (4 December 2023) (Judgment)

Neutral citation: [2023] KEELC 22087 (KLR)

Republic of Kenya

In the Environment and Land Court at Nairobi

Environment and Land Appeal 50 of 2019

LN Mbugua, J

December 4, 2023

Between

Amos Kaheri Ndehi

1st Appellant

Mary Njeri Ndehi

2nd Appellant

and

The County Government of Nairobi

1st Respondent

Grace Akinyi Odando (The Legal Representative of Shadrack Orero Adhoch - Deceased)

2nd Respondent

(Being an Appeal from the Ruling of Hon. A.M. Obura (Mrs.) SPM in Nairobi CMCC No. 1879 of 2019, delivered on 17th June 2019)

Judgment

1. The Appellants herein are aggrieved by the ruling of the Honourable A.M Obura SPM delivered on 17. 6.2019 in Milimani CMCC No. 1879 of 2019. The said interlocutory decision related to the Appellants’ Notice of Motion application dated 18. 3.2019 where they were seeking eviction order, as well as temporary injunctive orders restraining the Respondents from interfering with parcel LR No. 12062/726 Nairobi.

2. The said application was contemporaneously filed with the suit before the trial court, of which interim orders restraining the defendants from dealing with the suit property were issued exparte on 21. 3.2019 pending the hearing of the application.

3. The application was subsequently heard inter-partes culminating in the ruling of 17. 6.2019 whereby the earlier exparte orders were set aside and instead, the court gave an order that status quo be maintained. The Appellants were aggrieved by the said ruling hence this appeal where they seek orders for their application dated 18. 3.2019 to be allowed.

4. During the subsistence of this suit, the 2nd Respondent passed away and was substituted with his legal representative, Grace Akinyi vide the application dated 28. 7.2022.

5. The appeal was canvassed by way of written submissions which I have duly considered. This being an interlocutory appeal, the court is guided by the principle of law that an appellate court is estopped from interfering with the exercise of judicial discretion save in some circumstances. The said circumstances were stated in United India Insurance Co. Ltd. versus East African Underwriter (Kenya) Ltd [1985] EA 898 as cited by the Court of Appeal in Danson Mwangi Makanga v Mary Muthoni Githui [2017] eKLR as;“…The Court of Appeal is only entitled to interfere if one or more of the following matters are established; first that the judge misdirected himself in law; secondly, that he misapprehended the facts; thirdly that he took account of considerations of which he should not have taken account; fourthly that he failed to take account of considerations of which he should have taken account; fifthly, that his decision albeit discretionary one, is plainly wrong.”

6. Can the trial court be faulted for issuing an order of maintenance of status quo?.

7. In the first prayer in the plaint dated 18. 3.2019, the appellants had indicated that the 2nd respondent herein was a trespasser, and in their application of even date, they wanted vacant possession through an order of mandatory injunction. The plain import of those prayers is that the appellants were not in possession of the suit premises. The trial court cannot hence be faulted for making a finding that the appellants were not in possession of that land.

8. What more, it is quite apparent that allowing the application dated 18. 3.2019 would have been tantamount to issuance of a major relief at the interlocutory stage. In the case of Daniel Atibu Jasimba v Ainea Sandanyi Magana [2013] eKLR, the court had this to say in respect of a prayer relating to a major relief;“Since the Plaintiff’s suit is for eviction of the defendant from the said residence, such an injunction will amount to granting a major relief in the suit without the benefit of a hearing”.

9. In the case of Cyanamid Co. vs Ethicon Ltd (1975) 1 ALL ER 504; (1975) A.C 396 HL cited in Tritex Industries Limited & 3 others vs National Housing Corporations & another [2014] eKLR, it was held that;“It is no part of the court’s function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend, nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial”.

10. I find that the question of ownership ought to be dealt with in a full trial and not in interlocutory applications. In the case of Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR, the court stated that in establishing whether an applicant has a prima-facie case, the court does not hold a mini trial and must not examine the merits of the case closely.

11. In Bakari Shaban Gakere v Mwana Idd Guchu & 3 others [2022] eKLR, the court had this to say on matters “status quo”;“An order for status quo technically means that things be left as they are until the determination of a certain facts…”

12. It is the finding of this court that the order of status quo was the most appropriate in the circumstances of this dispute.

13. It is noted that a period of over 4 years has gone by from the time the order appealed against was issued. The appellants ought to embrace the overriding objectives set out under Section 1A and 1B of the Civil Procedure Act as well as Article 159 (2) (b) of the Constitution and focus on the substantive issues in the main trial instead of litigating through interlocutory processes. See Lawrence Kinyua Mwai v Nyariginu Farmers Co Ltd & another [2019] eKLR.

14. In the final analysis, I find that this appeal is not merited, the same is hereby dismissed with costs to the respondents. The file is to be remitted back to the trial court for disposal of the main suit.

DATED, SIGNED AND DELIVERED AT NAIROBI THIS 4THDAY OF DECEMBER, 2023 THROUGH MICROSOFT TEAMS.LUCY N. MBUGUAJUDGEIn the presence of:-Kibara for AppellantOjong’a for 1st RespondentCourt Assistant: Brian