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ELCAllowedNot stated in the extract (pending application for empanelment of a bench; application dated 22.4.2021; earlier application dated 24.3.2020 and empanelment application dated 25.2.2021)· [2021] KEELC 3193 (KLR)

Leruk Murusi & 14 others v County Government of Marsabit & 3 others [2021] KEELC 3193 (KLR)

Environment and Land Court
26 May 2021
736 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is an interlocutory ruling of the Environment and Land Court at Meru delivered by Hon. Lucy N. Mbugua, ELC Judge, on an application dated 22.4.2021 by M/s Katwa Kigen, advocate for the 9th-16th petitioners, seeking maintenance of status quo on the ground. The application arose because the Kenya Defence Forces had put up a temporary camp and an initial access road, and the petitioners sought that this situation be preserved without further expansion pending the hearing of an application for empanelment of a bench. The 2nd and 3rd respondents opposed, arguing the issue had already been canvassed and that no conservatory orders had issued, so a proper application should be filed; the 4th respondent and the 2nd interested party joined in opposition. The 1st-8th petitioners did not oppose. Reviewing the record, the court found that its ruling of 14.7.2020 on the application dated 24.3.2020 had not conclusively dealt with the interim conservatory orders issue, as the matter was then at an infancy stage; over a year later the application remained unprosecuted due to the Covid-19 pandemic, court-initiated amendments to pleadings, and the pending application dated 25.2.2021 for empanelment of a bench, with all pending applications on hold by consensus. Citing Black's Law Dictionary (8th Edition) and adopting the distinction drawn by Murithi J between a status quo order and an injunction, the court held that a status quo order is ancillary, preserves the existing situation pending hearing, and does not depend on proof of a right or prima facie case. Finding it in the interests of justice, the court ordered, on a temporary basis, that status quo be maintained on the ground pending hearing and determination of the pending applications or until further orders.

Key legal issues

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01

Whether an order for maintenance of status quo could issue notwithstanding that a prior conservatory orders ruling had been delivered

Holding

Yes - the earlier ruling of 14.7.2020 did not conclusively deal with the issue, the initial application remains pending, and the interests of justice favoured temporary preservation of the situation on the ground

Reasoning

The court reviewed its record and found the 14.7.2020 ruling left the interim conservatory question unresolved because the matter was at an early stage. Over a year later the application remained unprosecuted due to the Covid-19 pandemic, court-initiated amendment of pleadings and the pending bench empanelment application. Since all pending applications were on hold pending empanelment, preserving the situation as it existed was in the interests of justice, and the court issued the status quo order temporarily.

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02

The legal nature and effect of a status quo order

Holding

A status quo order is an ancillary preservation order distinct from an injunction; it requires no proof of right or prima facie case and merely leaves things as they stand pending hearing

Reasoning

Relying on Black's Law Dictionary (8th Edition) and the decision of Murithi J in the Baobab Beach Resort judicial review matter, the court distinguished status quo orders from injunctions. An injunction is a substantive equitable remedy requiring establishment of a right or, interlocutorily, a prima facie case, whereas a status quo order is ancillary, preserving the existing situation pending determination of proceedings, and does not depend on proof of right or prima facie case.

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Legal principles established

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  • An order for status quo to be maintained differs from an injunction in principles and effect; it is an ancillary order preserving the situation as it exists pending hearing and does not depend on proof of a right or prima facie case.
  • A party may revisit the issue of interim status quo where the initial conservatory order application remains pending and undetermined, and where it is in the interests of justice to preserve the situation.

Court orders

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  1. 1.Status quo be maintained on the ground, on a temporary basis, pending the hearing and determination of the pending applications or until further orders of the court
  2. 2.The Kenya Defence Forces' occupation as at 22.4.2021 (temporary camp and initial road of access) to remain without further expansion pending determination of the applications

Authorities

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Cases cited (2)

  • Republic –vs- The Chairperson Business Premises Rent Tribunal at Mombasa (Bench Mochache) Exparte Baobab Beach Resort (Mombasa Limited) & Monica Clara Schriel
    Mombasa Misc. Civil Application (JR) No.26 of 2010
  • In The Matter Of An Application By Saifudeen Abdullabhai & 4 Others For Leave To Apply For Judicial Review And For Orders Of Certiorari And Prohibition
    [2013] eKLR
Jurisdiction invoked
Original jurisdiction of the Environment and Land Court over the land dispute (petition pending before the court; bench empanelment application pending)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Leruk Murusi & 14 others v County Government of Marsabit & 3 others [2021] KEELC 3193 (KLR)", Case Analysis (2021). Not stated in the extract (pending application for empanelment of a bench; application dated 22.4.2021; earlier application dated 24.3.2020 and empanelment application dated 25.2.2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3193/eng@2021-05-26

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.