https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4356

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT HOMA BAY** **ENVIRONMENT AND LAND COURT** **CAUSE NO: ELC L OS E032 OF 2026** **DAVID MWAI OJWANG…………………………….……….…….1ST PLAINTIFF** **WILLIS OTIENO MEMO (suing on his own behalf) …………....2ND PLAINTIFF** **And on behalf of the estate of Zacharia Ojwang Odongo………….…. DECEASED** **VERSUS** **LAZARUS ODHIAMBO (sued as the registered owner and the administrator of the estate of Peter Okati Achola-deceased) ……………………………….…. DEFEDANT** **RULING IN RESPECT OF THE APPLICATION DATED 20TH APRIL, 2026** **BACKGROUND** 1. On 2nd April 2026, the Plaintiff/Applicants herein instituted proceedings against the Defendant/Respondent by way of Originating Summons where they sought, inter-alia, a declaration that they have become legal owners entitled by adverse possession of over 12 years since 1981 of the portion of land measuring approximately 25 by 75 feet comprised in Title Number West Kasipul/Kanyago Kokal/1337. 2. Together with the suit, they filed an application under Certificate of Urgency by way of notice of motion where they sought for an order of status in quo in respect of the subject matter. 3. Upon perusing the Certificate, the notice of Motion and the Supporting affidavit, the Court directed service of the application by Close of business 16th of April, 2026, and in the interim granted an order of status quo and fixed the matter for inter-parties hearing on 23rd March 2026 4. As per Court directions service of the application and Court directions was indeed effected on 13th April 2026 and an affidavit of service confirming same was filed on 15th April 2026. 5. On 21st April 2026, the Defendant/Respondent did file a replying affidavit opposing the Originating Summons, wherein he states that the 1st Plaintiff/Applicant was merely allowed to occupy the premises as a Caretaker hence his Occupation was by permission, and that, the status quo should not be used to sanction unlawful occupation. 6. On the same day the Defendant (now Applicant) filed an application dated 20th April, 2026 seeking to set aside and/or vary the status quo orders issued on 13th April, 2026 7. On 22nd April, 2026 directions were given by the Court in respect to the application dated 20th April, 2026 and the same was fixed for further directions on 28th April, 2026 8. On 28th April 2026 the Court upon confirming Compliance gave a date for ruling. **DEFENDANT'S/APPLICANT'S APPLICATION** 1. The Application which is filed by way of notice of motion has been brought under the provisions of Section 1A, 1B and 3A and Order 40 of the Civil Procedure Act. 2. The Defendant seeks for: 3. That Honourable Court be pleased to set aside and/ or vary the status quo orders issued on 13th April, 2026. 4. THAT in the alternative and without prejudice to prayer (i) The Honourable Court be pleased to order that all rental income arising from the shop premises on parcel no WEST KASIPUL / KONYANGO KOKAL / 1337 be deposited in a joint interest earning account in the names of both parties and/or Court pending the hearing and determination of the Suit. 5. THAT the applicants be restrained from collecting, utilizing or interfering with rental income from the said premises without accounting. 6. THAT Costs of the application be provided for. 7. The application is based on five (5) grounds and which can be summed up as: 8. The respondent is the registered proprietor of the suit property. 9. The applicant/Respondent have no lawful claim of possession . 10. The status quo order is being misused to continue unlawful occupation and to collect rental income from the respondent’s property. 11. The application is further supported by the Defendant/Applicant's Supporting affidavit sworn at unknown date. 12. The issues raised in the grounds are more or less similar to the facts deponed in the supporting affidavit, which apparently has no annextures. **RESPONSE BY THE PLAINTIFFS/ RESPONDENTS** 1. The Respondents through the 1st Plaintiff swore an affidavit in response on 22nd April, 2026. In the said response they state that: 2. No annextures have been furnished to Court. 3. The Respondent (Now Applicant) is the current registered Owner of the whole of WEST KASIPUL / KONYANGO KOKAL / 1337 including the suit land measuring 25 feet by 70 feet. 4. That the suit land existed since 1981 though registration was done in 1981. 5. That his father built two shops on the parcel number WEST KASIPUL / KONYANGO / 1337 as one unit on the portion now claimed 6. That out of the four shops they claim for, 2 are as follows: 7. Shop 1 is rented and rent paid to WILLIS OTIENO MEMO 8. Shop 2 rent is paid to WILLIS OTIENO MEMO 9. Shop 3 and 4 - they have no control 10. That Shop 3 and 4 now host RORIS HARDWARE Previously hosted PEFA GOSPEL CHURCH. - Is not claimed by the Plaintiffs. 11. That he was never permitted on the suit property by the late PETER OKATI OCHOLA. 12. That his primary residence is in the residential unit where he has resided with his family for over 20 years 13. That he was never employed by the late PETER OKATI OCHOLA as a Caretaker, Custodian or other manner on the suit property 14. That he has never been served with any demands, notices or other letters by the Respondent save for the letter dated 3rd April, 2026 which was served on 7th April, 2026 after his claim had crystallised. On that score the Plaintiffs state that they have been in possession for continuous and uninterrupted period of over 12 years . 15. That if possession is disturbed and status quo not maintained the Applicants possession will be adversely affected and they risk a real and immediate risk of eviction or dispossession, interference with their use and occupation of the land, alienation or dealings with the land by the Respondent and destruction of the substratum of the suit. 16. The 1st Applicant has established his home on the suit property while for the decades the 2nd Applicant has collected rent and controlled the shops on the suit land. 17. The Court has already exercised its discretion and issued status quo orders upon being satisfied that preservation of the suit property and the status quo usage is necessary. 18. That it is trite that the orders sought do not confer ownership but merely preserve the property and lifting status quo would expose the Applicants to grave and irreparable prejudice 19. The Plaintiffs rely on the following decisions: **Mbithe V Jimba Credit Finance Corporation & Another, Kimathi Miriria & Others V Harun Muthoni {2020} KECA 85, Muga V Kunga (1998) KECA 28, Magondu V. Kenlal Cars LTD V. New Gatundu Service station & Another [1990] eKLR,** **Olympic Sports House Ltd V School Equipment Centre [2012] eKLR, SHAH V. Maboga [1967] EA 116 and Bethe, Maison Limited V. Taya Towers LTD [1992] eKLR.** **SUBMISSIONS BY THE PLAINTIFFS/ APPLICANTS** 1. The Plaintiffs/Applicants through L. A. Onyango & Co. Advocates filed their Submissions dated 22nd April, 2026 on 24th April, 2026. 2. I will highlight the most salient issues raised in the said Submissions as hereunder: 3. That the Plaintiffs/Applicants have established a prima facie Case warrant Interim Injunction Sought and Consequent Maintenance of the Status Quo 4. The letter dated 5th January, 2018 was never served. 5. He has annexed Copies of Photographs. **THE APPLICANT'S SUBMISSIONS** The Respondent (Applicant) filed Submissions dated 25th April, 2026 where he states that: 1. Status quo are equitable in nature and governed by Injunction. That status quo should not sanction injustice. That this Honourable Court has jurisdiction to set aside or vary its own orders and that he has demonstrated that the Plaintiffs are collecting rent illegally. He relies on the decisions of **Giella V Casman Brown [1973] EA 358; Nguruman Limited VS Jan Bonde Nielsen & 2 Others [2014] eKLR, Koech & 3 Others [2022] KECA 642**, **American Cynamid V Ethicon Limited [1975] AC 396 and Kipkoech Versus Bargoria & Another [2019] KEELC 3435 (KLR).** **ISSUE S FOR DETERMINATION** 1. In Consideration of the two applications filed herein, the first being the Plaintiffs Application dated 11th April, 2026 and the Defendant (Respondent) Application dated 20th April, 2026 in opposition to the Plaintiffs said application. 2. Since both applications lean towards upholding or reviewing the Order of Status Quo, I will determine both applications together. 3. For purpose of rendering my ruling and for the avoidance of doubt ,I will refer to the Plaintiffs as the Applicant while the Defendant shall be the respondent. **ISSUES FOR DETERMINATION** 1. **a) The Legal position on Status Quo/ Interlocutory Orders.** **b) Whether the Defendant/Respondent has made out a case for review of the Order. Or whether the Plaintiff deserves retention of the said Orders.** 1. **Status quo means** preserving the existing, prevailing state of affairs at the time of a Court order. The Supreme Court of India defines it as a directive of inactivity, barring parties from altering property conditions, transferring possession or making change until final judgement. 2. In **Bharat Petroleum Corp Ltd V Chembur Service Station** - the Supreme Court noted that the Order to maintain status quo permits the party already holding possession to continue using and occupying the property without disturbance. 3. Justice Felix Frankfurter, an Associate Justice of the Supreme Court of the United States, said this on status quo - "***Judicial judgment must take deep account of the day before yesterday in order that yesterday may not paralyse today"*** 4. Status quo comes from the Latin phrase in statu quo which means "***in the state in which"*** 5. In law, maintaining the status quo means preventing any change in the existing situation until the Court finally decides the case. The Court uses status quo to avoid one party gaining an advantage over the other before a final judgment. 6. Status quo serves several purposes, these are: 1. Ensuring fairness and justice. 2. Preventing irreparable harm. 3. Facilitating orderly proceedings. 4. Ensuring consistency and legal stability. 1. Violating a status quo order shows disregard for the Court's authority and the Court can take strict action to restore fairness and uphold the rule of law. 2. This Court appreciates that the reason as to why our law makers promulgated Section 40 of the Civil Procedure Rules under provisional remedies regarding property alienation was to stop irreparable damage/ alienation or waste of assets while litigation is pending. An order of status quo ensures neither party alters the practical situation to prejudice the final outcome. However, in granting status quo courts rather than being vague in their expression, a Court should explicitly define what aspect of the status quo is being frozen, so as to avoid any resultant breach of peace. 3. The question to be determined or answered is whether the provision of Order 40 Rule 1 of the Civil Procedure Rules calls for the granting of an order of status quo. 4. Status quo in many jurisdictions is usually confused with an injunction. 5. A status quo order quite often than not takes the form of an injunction. Both provide different types of interim relief, but an injunction will generally restrain a party from doing some act, while a status quo merely freezes things as they stand. 6. The similarity in the two is that both orders can be granted by Courts concurrently or autonomously based on specific facts, character of the case, and exigency of the situation. 7. As mentioned in my cogitation hereinbefore I have endeavored to decipher the meaning of the word status quo, I venture deeper into the historical origin of the phrase 'status quo' which originates from the Latin legal maxim ***\_"status quo ante bellum"*** - meaning the state existing before the war and equity jurisprudence. 8. Interlocutory injunctions were the brainchild of the early English Courts of Equity, in contradistinction to Common law Courts, which developed interlocutory injunction. 9. The Courts of Chancery ordinarily granted injunctions as discretionary remedy to address situations where the common law remedy of damages proved insufficient. 10. The status quo is intertwined with fundamental equitable maxims such as requiring parties to come with clean hands and determine in whose favor the balance of convenience lies to avoid irreversible changes. 11. I therefore find that the principles of granting an injunction and status quo are akin to each other hence they cannot be severed. 12. In the words of Justice Kuloba in the case of **Seteyia & 3 Others v Gilome HCC 422 of 1993 KEHC** the idea of a temporary injunction is to maintain the status quo pending the outcome of litigation but the question may be, whose status quo is to be preserved. 13. Justice Kuloba then answered the question by stating thus: ***" The answer is that status quo which will be preserved by a temporary injunction is the last actual, pre-dispute, peaceable, non Contested status which preceded the pending or forthcoming controversy to be resolved in the suit”.*** This means that the injunction shall preserve or restore such relationship to a desirable state. Equity will not permit a wrong doer to shelter himself behind a suddenly or secretly changed status even if he succeeded in making the change before the judge's hand actually reached him. Restoration of the right status quo is an effort to meet the efforts of those who endeavour to be swifter than justice and the law. Accordingly, the object of a temporary injunction is to put and keep matters in the position in which they stood before the disorder commenced and to prevent any party from gaining any unfair, undeserved or forensic advantage by his own wrongful act. 1. The Principles guiding the granting of interlocutory injunctions has been settled in \_Giella v Cassman Brown & Co Ltd [1973] EA 358 which has been adopted by Kenya Courts including subsequent decisions made by the Court of Appeal in **Nguruman Limited versus Jan Bonde Nielsen & 2 Others [2014] eKLR** where the Court reiterated thus: ***" In an interlocutory injunction application, the applicant has to satisfy the triple requirements to establish his case. Only at a prima facie level demonstrate irreparable injury if a temporary injunction is not granted and allay any doubts as to the above by showing that the balance of convenience is in his favour."*** 1. On the 1st limb of granting an injunction the Applicant must demonstrate that he has a prima facie case. The Court has to look at the strength of both the Plaintiff's case compared to the Defence then decide what is best to be done. This was the holding in Mrao Ltd v First American Bank of Kenya & 2 Others and Central Bank of Kenya & Another & Uhuru Highway Development Ltd & 4 Others. 2. The second test is whether the applicant will suffer irreparable loss. In the case of **\_Paul Gatongi Wayua v Gathuthi Tea Factory Company Limited & 2 Others Myers Hcc No 28 of 2018 [2016] KEHC 7263 KLR, the Court stated that in order to show irreparable harm, the moving party must demonstrate that the harm suffered cannot be quantified or is incurable.** 3. Referring to the definition of harm by Robert Sharpe in his book "**Injunctions and Specific Performance",** Looseleaf (Aura Ont Canada Law Book, 1992) P 2-27. Irreparable harm has no definition of universal application but takes shape in the context of each particular case. 4. On the 3rd limb the Court will take into account the balance of convenience. That is where any doubt exists as to the rights of the Applicant, or if not disputed, but its violation denied. The Court will consider the nature of the injury if the injunction was granted or if it is not granted. The Court normally weighs the two options**. Annu Suleiman v Amboseli Resort Ltd & Other [2004] eKLR.** 5. Other considerations will include whether the injunction may be unworkable or onerous impracticable if the circumstances are that it cannot be enforced by the Court, or complete relief obtained in a final decree, or acts complained of have been discontinued or it will not correct the mischief complained of, the Court will not grant an injunction. 6. In the words of Justice Kuloba retired in the case of **\_Seteye (supra)\_** the Court should not make an order which will be **infructuous for practical purposes".** 7. Since the granting of an injunction is a subject to the Court's discretion the same must be proceeded on correct principles in a factual setting and if hardship to the defendant is much less than the applicant relief will issue. \_**Lucy Wangu Gacharae V Ntimudi & Okwembu Lore\_ (2015) eKLR.** 8. I will also consider the law in setting aside an Order of status quo. 9. The law in setting aside ex-parte injunction orders is found under **Order 40 Rule 7 of the Civil Procedure Rule.** 10. The said provision is amplified by **Order 51 Rule 15** which provides that the Court may set aside an order made ex parte. 11. In the case of **Atlas Copco Customer Finance AB - V Polaris Enterprises (2016) KEHC (KLR)** the High Court considered some of the factors that guide the exercise of the Court's discretion under Order 40 Rule 7 of the Civil Procedure Rules as follows. ***" It is imperative therefore that care be exercised to ensure that the plaintiff is not merely out to have a re-look of the matter, and in this regard it is now trite that some of the factors that guide the exercise of the Court's discretion. These areas of law are, but not limited to:*** 1. Proof that the injunction was obtained by concealment of facts which if presented would have worked against the granting of the injunction 2. a radical change in the circumstances of the suit, such that it is no longer necessary to have the injunction; 3. proof that the general Conduct of the holder of injunction is such that the Court is impelled to discharge the injunction, for instance where the injunction is being used to intimidate or achieve an ulterior purpose 4. Proof that the substance of the injunction would cause an injustice 5. In the case of **Devani vs. Bhadresa & Another 1972 EA 22**, the EA Court of Appeal held that the learned judge was right in holding that he would have never granted the injunction had the appellant made full and frank disclosure of all material facts at the time of granting the ex-parte order of injunction and the Judge was entitled to set aside the injunction that the status quo could be preserved without the injunction. 6. Having Considered the law and the principles that were addressed in the above authorities, I now move to address the 2nd issue which is whether the Defendant has established or met the threshold for setting aside. 7. What can be deduced from the above decisions is that the Court will ordinarily grant or deny an injunction as a matter of discretion. 8. In granting an injunction the Court will be guided by several principles and if the Court thinks otherwise, that the status quo be maintained on the same will be defined by the last actual, pre-dispute, peaceable, non-contested status preceding the filing of the suit. 9. The Court will also consider whether the refusing to grant an injunction may cause greater harm than granting it would cause the respondent. Interests of both parties must be weighed. 10. It must be appreciated that the matter came before the judge under certificate of urgency and having perused the application in its entirety and based on the material placed before him, granted an order of status quo basically to preserve the substratum of the suit. 11. The Judge, in granting the order, was convinced by the material placed before him; and in granting the order, the Judge gave directions so as to actualise the said orders. 12. The Plaintiff then proceeded to effect service, and upon being served, the Defendant filed a response and the current application for review. 13. In the said application the Defendant seeks to forestall collection or utilisation of the rental income from the suit properties. 14. The basis or reasons given for his application for review is summarised as: -The applicant have no lawful claim of possession - Status quo order is being misused to continue unlawful occupation. 1. In opposing the application, Counsel for the Plaintiff raised several issues -No annexures have been furnished - that the Respondent is the current owner of the suit land - Of the four shops 2 are in the hands of the Defendant - The plaintiffs have resided and or occupied the suit property for Over 20 years - That 1st plaintiff was never appointed as a caretaker - That if status quo is not maintained the Applicants possession will be adversely affected and they risk **i**mmediate eviction. 1. An injunction being an equitable remedy is rooted in the principles of goodwill, equity, good conscience and the legal maxim **\_"Ubi jus ibi remedium**"\_, where an individual is commanded by the Court to perform or Cease to perform a specific action. Provided, that if the Court were not to intervene would cause irreparable harm to the status quo of individuals involved in the case. 2. At the stage of passing an interlocutory order such as was made in this case, the competent Court makes its decision based on availability of a prima facie case, balance of convenience and irreparable injury which are the well known principles of granting an injunction. 3. The Supreme Court in the Case of **Golden Lime International Limited V Bluespace Shopping Mall Limited Supreme Court Applcation number 21 of 2019,** in reference to the Case of **Parliamentary Service Commission v** **Martin Nyaga Wambora & 36 Others Supreme Court Application number 8 of 2017(2018)\_eKLR** where the guidelines for a review of a decision made in the exercise of its discretion are as follow: 4. A review of the exercise of discretion is not a matter of course. 5. Review of exercise of discretion is not a right but an equitable remedy which calls for a basis to be laid for the satisfaction of the Court. 6. An application for the exercise of discretion is not an appeal or a chance for the applicant to re-argue his/her application. 7. In an application for review of exercise of discretion the applicant has to demonstrate to the satisfaction of the Court, how the Court erred in exercise of its discretion or exercised it whimsically. 8. During such review application the focus of the Court is not the merit of the substantive motion subject of the decision under review. 9. The applicant has to satisfactorily demonstrate that the judge(s) misdirected themselves in exercise discretion. And: 10. as a result of a wrong decision was arrived at, or 11. It is manifest from the decree as a whole that the judge has been clearly wrong and as a result there has been apparent injustice. 12. The Defendant has not demonstrated how the Court erred in exercising its discretion in granting the orders of status quo hence arrived at a wrong decision. 13. Other than stating that he has a title deed and that the plaintiffs are enjoying collection of rent, he has not disclosed or demonstrated that the Applicants misled the Court into granting the orders sought. 14. The Defendant has not demonstrated that he has been collecting rent and that he will suffer irreparable loss which can not be remedied in damage 15. He has also not disclosed that he is collecting rent for half of a portion of the entire premises. 16. His only justification is that the 1st plaintiff has been a caretaker who was employed by his father. 17. The Applicants have in their affidavit deponed that they are likely to suffer greater harm if the status quo is not maintained. 18. I find no reason to overturn the decision of the Judge who made the orders and doing otherwise would amount to sitting on Appeal. 19. The doctrine of judicial stability or the case of judicial doctrine which is an elementary principle in the administration of charges prevents judges from interfering with each other's orders, protecting the rule of law and prevents forum shopping. 20. I find that the application which is not supported by any annexure is an afterthought and an attempt to have a second bite of the cherry. I find it injudicious to waste precious time by instituting applications, which will impact on the timely and conclusive hearing of the main issues at hand. 1. I find that the status quo existing is that both sides are enjoying occupation, and using the premises especially in terms of collecting rent from tenantsto which fact was never disclosed by the Defendant. 2. I believe if a decision is made in favour of either party the premises/ tenants will be within reach and any damage suffered by the offended party will be addressed. 3. It is the salient duty of the Court to guard the material subjects by ensuring that the status quo ante is well preserved. 4. Ultimately I find that the application dated 20/4/2026 lacks in merits and the same is dismissed accordingly. 5. I also proceed to enhance the initial order of status quo which was in interim pending hearing inter-partes to an Order. 6. I proceed to make the following orders , 7. I allow the application dated 11th April,2026 is allowed in the following terms: 8. Prayer 7, 8 and 9 is granted pending the hearing and determination of the suit. 9. Costs shall be in the cause Ruling Dated and Delivered via team platform this 7th day of July 2026. In the Presence of; * + - 1. Reinhert for the Plaintiff- Present 2. Ms. Ochieng for the Defendant- Present 3. Court Assistant, Ms. Awino-Present JUSTICE J.W WANYONYI – JUDGE