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ELCPartially AllowedNot stated in the judgment· [2024] KEELC 649 (KLR)

FRANCIS KIRIMA M’IKUNYUA v ELIZAPHAN KANYORO MWANGI

Environment and Land Court
8 February 2024
JOJUDY OMANGE
1,050 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to preserve the situation on disputed land because the applicant failed to clearly explain what 'status quo' meant.

What this practically means

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Executive summary

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This was a ruling of the Environment and Land Court (Judy Omange J) on two applications in an appeal against a magistrate's decision refusing to set aside an ex parte judgment. By an application dated 19th December 2022, the Appellant sought an order maintaining status quo in respect of Nairobi Block 122/500 pending the hearing and determination of the appeal, following the dismissal of his review application in the lower court. The Respondent opposed, pointing out that the appellant had waited nearly two years to file the appeal, had delayed the lower court matter through myriad applications, and had been issued a notice to vacate as far back as January 2022. The appellant submitted that status quo orders differ from injunctions and require no proof of a prima facie case, while the respondent relied on Supreme Court authority that ambiguous status quo orders abuse court process. The court adopted Muriithi J's definition of a status quo order as an ancillary order preserving the existing situation pending determination, which does not depend on proof of a prima facie case, but stressed each case turns on its own merits. The application failed because the appellant failed to specify the status quo sought: he was not candid about the date of the vacation notice, and his affidavit of 28th August 2023 suggested his tenant was in occupation, creating confusion as to what state of affairs was to be preserved. The status quo application was dismissed with costs. However, on the application dated 28th August 2023 seeking directions, the court held the appellant deserves a chance to ventilate his appeal and directed that a mention date be fixed for directions on the appeal.

Key legal issues

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01

Whether status quo orders should issue pending appeal

Holding

Application dismissed because the applicant failed to identify the status quo to be maintained and was not candid on the timing of the eviction notice

Reasoning

The court accepted that status quo orders do not require proof of a prima facie case and are distinguishable from injunctions. However, the application and supporting affidavit failed to specify the existing state of affairs: the appellant claimed a vacation notice but was not candid on its date (issued January 2022, application filed a year later), and it was unclear whether the appellant or his tenant occupied the property. Ambiguous status quo orders would embarrass the court.

p. 2
02

Whether the appellant should be given a hearing date for the appeal

Holding

Granted; the court will fix a mention date for directions on the appeal

Reasoning

The application dated 28th August 2023 sought directions on the appeal, the appellant contending he could not obtain a hearing date. The court held the appellant deserves a chance to ventilate his appeal and directed that a mention date be issued after delivery of the ruling.

p. 3

Legal principles established

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  • A status quo order is an ancillary order for preservation of the existing situation pending determination of proceedings and does not depend on proof of a prima facie case, unlike an injunction
  • An applicant seeking to maintain status quo must succinctly indicate the status quo sought to be maintained and place the full factual picture before the court
  • Each case on status quo must be determined on its own merits, particularly where one party has already obtained a judgment

Court orders

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  1. 1.Application dated 19th December, 2022 seeking maintenance of status quo dismissed with costs
  2. 2.Directions to be issued on the appeal at a mention date fixed after delivery of the ruling

Authorities

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Cases cited (5)

  • Republic Vs National Land Environment Tribunal Ex parte Palm Homes Limited & Another
    (2013) eKLR
  • Kenya Airline Pilots Association (KALPA) Vs Cooperative Bank of Kenya Limited & Another
    (2020) eKLR
  • Bia Tosha Distributors Vs Kenya Breweries Limited & 6 Others
    Petition 15 of 2020 (2023) KESC 14 (KLR)
  • Uhuru Highway Development Limited Vs Central Bank of Kenya, Exchange Bank Limited (involuntary liquidation) and Kamlesh Patni
  • 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
On appeal from
Magistrates' Court
Jurisdiction invoked
Appellate jurisdiction over the lower court; not stated in the judgment

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, "FRANCIS KIRIMA M’IKUNYUA v ELIZAPHAN KANYORO MWANGI", Case Analysis (2024). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/649/eng@2024-02-08

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