https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4401

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT BUNGOMA** **ELC EP MISC. APPL NO. E003 OF 2026** **ROSEMARY NEKASA BARASA …………....……...…… APPLICANT** **VERSUS** **MARTIN MASOLOLWE KHAEMBA ……………. 1ST RESPONDENT** **MESHACK KHAEMBA WANJALA …………….. 2ND RESPONDENT** **RULING** The Applicant brought the application dated 17/4/2026 seeking an orderof injunction to restrain the Respondents from dealing with the land known as West Bukusu/North Mateka/3686, 3687, and 3689, formerly known as West Bukusu/North Mateka/396 pending hearing and determination of the application seeking to reopen ELC Case No. E008 of 2023 and the substitution of the Respondents as the legal representatives of the estate of the late Perita Nakhanu Kamili. The Applicant also sought an order for maintenance of the status quo. The application is premised on grounds that the Applicant has been in open, continuous, uninterrupted and exclusive occupation of a portion of West Bukusu/North Mateka/396 before it was subdivided and that she filed ELC Case No. E008 of 2023 which abated. The Applicant filed an application seeking to reopen ELC Case No. E008 of 2023 and substitute the 1st and 2nd Respondents as the legal representatives of the estate of the late Perita. She urged that the orders sought were not based on the establishment of a p*rima facie* case but for the preservation of the subject matter in the suit. The Applicant swore the supporting affidavit and annexed a copy of the ruling issued by this court on 6/6/2024 together with the affidavit in support of the citation. The Respondents filed a notice of preliminary objection in which they contended that this suit offended Section 6 of the Civil Procedure Act and that it was unprocedurally filed. Further, that it contravened Section 2, 19 and 29 of the Civil Procedure Act. The application was canvassed through written submissions. The Applicant submitted that the preliminary objection filed by the Respondents did not meet the legal threshold for such objections. She urged that the application was properly before this court because it is connected to ELC Case No. E008 of 2023, which abated upon the death of the original Respondent. She argued that a suit that had abated was legally dead and that proceedings cannot be taken in a dead file. She argued that the application was grounded on Order 51 Rule 1 of the Civil Procedure Rules. She went on to argue that this miscellaneous application was commenced by notice of motion pursuant to Order 51 and was not a suit for the doctrine of *sub judice* to apply to it. She contended that a preservation or status quo order was not an injunction in the classical sense and that its sole purpose was to freeze the property on the ground so that nothing was done to diminish the subject matter of the pending proceedings. She reiterated that the application seeking to reopen ELC Case No. E008 of 2023 was pending and urged that this application was filed in furtherance of that suit. The Applicant’s main contention is that the Respondents are demolishing structures and fencing off the suit land while the application for revival of the suit is still pending in ELC Case No. E008 of 2023. The Respondents submitted that the main question before this court was whether an application for temporary injunction could be made in an application for review orders. They urged that injunctions are civil law remedies obtained where there is a prayer in the main suit. Further, that suits could only be instituted through a plaint, petition, originating summons or judicial review. They argued that if the court were to issue the orders sought there would be nothing left for the court to deal with thereafter as opposed to the position where a court ordinarily issues a temporary injunction before making a final determination on the main case. Order 51 Rule 1 of the Civil Procedure Rules does not prescribe the manner for commencing a miscellaneous application as the Applicant contended. It merely stipulates that applications to court are to be made by motions and heard in open court unless the court directs otherwise. Section 19 of the Civil Procedure Act stipulates that suits should be instituted in the manner prescribed by the rules. The Applicant should have sought the orders sought in the present application in ELC Case No. E008 of 2023 (OS). Nothing stops the Applicant from seeking the orders sought here in the other suit. Filing another separate application only increases the suits the court has to determine over the same suit land. The court declines to grant the reliefs sought in the application dated 17/4/2026. The application succeeds to that extent. The court makes no orders as to costs. Delivered virtually at Bungoma this 1st day of July 2026. **K. BOR** **JUDGE** **In the presence of: -** Ms. W. Komora holding brief for Mr. C. Akenga for the Applicant Court Assistants- Bett/Metrine No appearance for the Respondent