https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5179

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT** **AT MILIMANI LAW COURTS, NAIROBI** **ELCLC CASE NO E020 OF 2026** **CAROLINE NYAMBURA WAIRIMU & RISPER MAKOKHA LUKOYE** **(Suing as the Administrators of the Estate of Regina Wairimu (Deceased)…………………………..……….………………………..…….. PLAINTIFFS** **-VERSUS-** **HUSSEIN IBRAHIM NUNI ………………..……………………..……… DEFENDANT** **RULING** **Introduction** 1. The matter is coming up for the determination of the notice of motion application dated 12th May 2026 which seeks the following orders 2. **Spent.** 3. **THAT,** this Honourable Court be pleased to order that neither party and/or their agents shall interfere with the existing state and character of the suit property and the prevailing status quo obtaining on the suit property known as L.R. No. 36/II/28 situated within Eastleigh in Nairobi City County shall be maintained, pending the hearing and determination of this application. 4. **THAT** this Honourable Court be pleased to order that neither party and/or their agents shall interfere with the existing state and character of the suit property and the prevailing status quo obtaining on the suit property known as L.R. No. 36/II/28 situated within Eastleigh in Nairobi City County shall be maintained, pending the hearing and determination of the suit. 5. **THAT** the Officer Commanding Station (OCS) Eastleigh Police Station do supervise compliance with the orders of this Honourable Court. 6. THAT this Honourable Court be pleased to issue such further or other orders as it may deem fit and just. 7. THAT costs of this application be in the cause 8. The application was premised on grounds as in the supporting of Caroline Nyambura Wairimu. She deponed that there were interim injunctive orders that were set aside by this court this court having indicated the matter involved unresolved issues as to ownership, possession and occupation of the suit property which can only be conclusively determined upon full hearing of the suit, it would be in the interest of justice to maintain the status quo. 9. **THAT** there is imminent danger of Defendant/Respondent may continue with construction and further developments on the suit property to the detriment of the Plaintiffs which are likely to alter the character and substratum of the dispute, thereby rendering the proceedings nugatory and occasioning irreparable prejudice to the Plaintiffs hence the need for status quo orders 10. The Defendant opposed the application via the replying affidavit sworn on the 14th May 2026. He deponded that the application was res judicata as the court had in its ruling of 11th May 2026 dealt with the issue of issuing preservatory orders and had declined to issue the same and as such the Applicant was barred from bringing the same issue. 11. the Applicant was seeking for review of the ruling disguised as an application for preservatory orders 12. He further deponed that the Applicant had not met the conditions for issuance of the orders he sought after as in Order 40 Rule 1 and 2 of the Civil Procedure Rules 13. The application was dispensed off by way of written submissions with the Applicant filing submissions on the 16th June 2026 whereas the Respondent filed its submissions on the 11th June 2026. Applicant s’ submissions 1. The Applicant submitted on the Court's inherent jurisdiction exists to ensure that justice is done relying on the provisions of **Sections 1A,1B and 3A of the Civil Procedure Rules** and that this court should exercise the same in granting the orders. He further indicated the court was not functus officio and could issue any orders On the issue of res judicata counsel submitted that this application was not res judicata as the issue presented before the Court is whether the suit property ought to be preserved pending the hearing and determination of the suit whereas the ruling of 11th May, 2026 addressed the question of whether an interlocutory injunction ought to issue. Counsel submitted that the status quo orders sought after is intended to preserve the existing state of affairs so as to ensure that the Court's eventual determination is rendered upon an intact and identifiable subject matter placing reliance in the cases of **Republic Vs National Environment Tribunal Ex Parte Palm Homes Limited & Another [2013] eKLR,** **Reliance Bank Limited Vs Norlake Investments Limited [2002] 1 EA 227.** Respondent’s submissions 1. Counsel reiterated the application was res judicata to the ruling delivered on 11th May 2026 being that the application of 20th May 2026 seeking injunctive orders was heard and dismissed. He further submitted that the application and was disguised as an appeal an inviting this court to sit on its own appeal 2. He further argued that the Applicant s had not met the threshold for issuance of injunctive orders as in **Order 40 rule 1 and 2 of the Civil Procedure Act** and further as captured in the **Giella Vs Cassman Brown & Co Ltd 1973 EA 358** case. That no prima facie case had been established as already captured in the 11th May 2206 ruling, neither prove of any substantial loss established but mere allegations raised in the supporting affidavit. Counsel indicated if the orders are issued, they will contradict the orders of 11th May 2026. 1. **Analysis and determination** 2. Having considered the pleadings, the replying Affidavit, and the submissions of both parties the Court finds the following issues for determination 3. Whether the application is res judicata 4. Whether the application is merited 5. The doctrine of res judicata finds its statutory foundation in Section 7, Civil Procedure Act which declares that:“*No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.”* 6. In essence, this provision enshrines res judicata as a bar on re-litigation once a competent court has delivered a final decision on the merits. Kenyan jurisprudence has consistently reinforced the principle of res judicata. In **Kenya Commercial Bank Limited Vs Muiri Coffee Estate Limited & another [2016] eKLR** the court meticulously articulated the essential ingredients for res judicata: identical parties, substantially the same matter, the same title, a competent forum, and a final determination. Only when these elements converge does res judicata operate, transforming a prior judgment from a mere record into an impervious shield of legal certainty. **In E. T Vs Attorney General & Another [2012] eKLR the court observed that**: *“The doctrine of res judicata is a fundamental principle of law which precludes parties from re-litigating issues that have already been determined by a court of competent jurisdiction. It is based on public policy that litigation must come to an end.”* 7. The Supreme Court in Kenya Commercial Bank Limited (supra) went on to state as follows: *“Hence, whenever the question of res judicata is raised, a Court will look at the decision claimed to have settled the issues in question; the entire pleadings and record of that previous case; and the instant case to ascertain the issues determined in the previous case, and whether these are the same in the subsequent case. The Court should ascertain whether the parties are the same, or are litigating under the same title; and whether the previous case was determined by a Court of competent jurisdiction.”* 8. The 1st ingredient to look at will be whether the issues raised in the application of 20th January 2026 are the same as the issues raised in the current application 9. I have looked at the ruling delivered on the 11th May 2026 and it addressed the issue raised in the Applicant ’s application of 20th January 2026.The application sought for injunctive orders as against the Respondent. In this current application the Applicant s have framed their prayers seeking for preservation of the suit property and have it in the condition it is at which points out to status quo orders. 10. The question then before the court is what is a status quo order. The ***Black’s Law Dictionary, Butter Worths 9th Edition,***defines Status Quo as a Latin word which means*“the situation as it exists*” In **Republic Vs National Environment Tribunal, Ex-parte Palm Homes Limited & Another [2013] e KLR, Odunga J*.*** stated**,** *“When a court of law orders or a statute ordains that the status quo be maintained, it is expected that the circumstances as at the time when the order is made or the statute takes effect must be maintained. An order maintaining status quo is meant to preserve existing state of affairs...Status quo must therefore be interpreted with respect to existing factual scenario..."* **In Kenya Airline Pilots Association (KALPA) Vs Co-operative Bank of Kenya Limited & another [2020] eKLR**, the purpose of a status quo order was explained as follows*: “By maintaining the status quo, the court strives to safeguard the situation so that the substratum of the subject matter of the dispute before it is not so eroded or radically changed or that one of the parties before it is not so negatively prejudiced that the status quo ante cannot be restored thereby rendering nugatory its proposed decision.* 1. Apart from preserving the substratum of the subject matter, the court has also found an order of status quo as a case management strategy, where the court is keen to prevent prejudice as between the parties to a matter pending the hearing and determination of the main suit. The Court of Appeal in the case of **Mugah Vs Kunga [1988] KLR 748,** upheld the practice of issuing status quo orders in land matters status. “*Status quo orders should always be issued for purposes of preserving the subject matter. This court’s practice direction vide Gazette Notice No. 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 status quo to be maintained until determination of the case.’’* 2. Having discussed the definition and purpose of a status quo order, the next question is the nature of the order and whether it differs from an injunctive order. **Murithi Jin Boabab Beach Resort as quoted by F. Tuiyot Saifudeen Abdullahi & 4 Others in Mombasa High Court Misc. Civil Cause No. 11 of 2012**, described the nature of a status quo order as follows: *“In my view, an order to Status quo to be maintained is different from an order of injunction both in terms of the principles for grant and the practical effect of each. While the latter is a substantive equitable remedy granted upon establishment of a right, or at interlocutory stage, a prima facie case, among other principles to be considered, the former is simply an ancillary order for the preservation of the situation as it exists in relation to pending proceedings before the hearing and determination thereof. It does not depend on proof of right or prima facie case. In its effect, an injunction may compel the doing or restrain the doing of a certain act, such as, respectively, the reinstatement of an evicted tenant or the eviction of the tenant in possession. An order for status quo merely leaves the situation or things as they stand pending the hearing of the reference or complaint.”* 3. The case of **Thugi River Estate Limited & another Vs National Bank of Kenya Limited & 3 others [2015] eKLR** stated; “*Firstly, an order of status quo will issue through a judicial process. Where the court in exercise of its general or statutory jurisdiction grants orders for maintenance in situ of a particular state or set of facts… the second or alternative order for status quo is the one issued by the court as a case management strategy. It is issued to provide assistance to the case. It also maintains a particular state of affairs or set of facts. Unlike a conservatory order or injunctive order, it is not descriptive. It is originated either by the court or by the consent of the parties. Often the court would not have been moved by either party. The court then expects an existing state of affairs or facts be preserved until a particular occurrence or until the courts’ further orders. It is intended to also freeze the state of affairs. State of affairs however do not always remain static, so it is always crucial for the court to be very specific and neat in its description of what state of affairs is to be preserved.* 4. From the above case, It is clear that a status quo order is different from an injunctive order. This therefore means that the issues in this application are different from the previous application addressed by the ruling. Having said so the doctrine of res judicata fails 5. The next issue will be whether the application is merited. From the case laws above status quo orders can be issued for the purpose of preserving the subject matter of the property, for case management reasons and in a bid to prevent prejudice from being visited against either party to the case. The ruling having found the Applicant had not satisfied the conditions for grant of injunctions which conditions are not necessary under status quo, I find no basis not to grant status quo orders to preserve the subsatrum of the suit property. 6. The decision in Thugi River Estate Limited & another Vs National Bank of Kenya Limited & 3 others [supra)requires a court originating status quo orders to explicitly frame the state of affairs to be preserved. The primary difficulty in this case will be determining the current status quo as the court has not carried out a site visit. The Plaintiffs claim to be in occupation, the Respondent claims the status quo is their current occupation having constructed on the same. The evidence on record points to the construction by the Defendant however the claims of the Plaintiffs being in possession cannot be ignored. If the court simply orders "the status quo be maintained" without clarifying who is currently in possession, it may inadvertently encourage the party currently on the land to further entrench themselves, or invite the other party to try and "regain" possession before the order is served. **Final disposition** 1. The I find the best approach, given that both parties claim to be in possession of the suit land, the most equitable path is to grant a status quo Order with specific restrictive conditions as herein under: 2. Neither party shall be involved in any manner as to selling, transferring, mortgaging, or leasing the land to any third party pending the hearing of this suit. 3. Neither party shall change the character of the land. 4. That as previously directed, matter to be fixed for hearing within 60 days of the date of the Ruling. 5. The costs of the application shall be in the cause. **It is so ordered.** **DATED**, **SIGNED** and **DELIVERED** virtually at **NAIROBI** on this **6th** day of **August, 2026.** **MOHAMMED N. KULLOW** **JUDGE** **Ruling delivered in the presence of: -** **Ms. Njenga for Bashur** for the Plaintiff/Applicant Ms. Nyaga for Mr. Kamau for for the Defendant **Ms. Mwangi** Court Assistant