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ELCOtherNot stated in the judgment (Notice of motion dated 7/11/2023)· [2024] KEELC 5528 (KLR)

Owino, Ndoga & Okemwa (Suing in their Representative Capacities as the Secretary, Chairman and Treasurer Respectively of Tassia Welfare Association) v Board of Trustees National Social Security Funds & another (Environment & Land Case E161 of 2023) [2024] KEELC 5528 (KLR)

Environment and Land Court
15 July 2024
3,536 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Plaintiff, a residents association, moved the Court by notice of motion dated 7/11/2023 under Order 40 Rules 1(a) and (2) of the Civil Procedure Rules, the Civil Procedure Act, the Land Registration Act and Articles 40 and 159 of the Constitution, seeking an interlocutory injunction restraining the Defendants from entering, constructing on, selling, subdividing, allocating or otherwise interfering with numerous plots and public utility parcels in Tassia, Embakasi (including police post, chiefs' office, post office, health centre, school, park and nursery school plots), pending the hearing and determination of the suit. The 1st Defendant (National Social Security Fund) opposed, asserting ownership purchased from Tassia Coffee Estate Limited, a 2004 judgment in HCC No. 529 of 2002, and a 2005 regularization and re-survey scheme. The 2nd Defendant (County Government of Nairobi) opposed the injunction, stating the public purpose plots had been surrendered for public utilities serving about 10,000 residents and that injunctive orders would disrupt essential services. Applying Giella v Cassman Brown and Nguruman, the Court (Mogeni J) found that ownership of the suit properties was hotly disputed and could not be resolved on affidavit evidence, and that injunctive relief risked prejudicing public services. Distinguishing a status quo order from an injunction, and relying on Palm Homes, KALPA, Fatuma Abdi Jillo and Thugi River Estate, the Court instead issued a status quo order preserving the suit properties - no subdivision, sale or allocation to third parties - directed all parties to maintain peace, tasked the OCS Kasarani with supervising compliance, and ordered costs in the cause.

Key legal issues

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01

Whether the Applicant met the Giella v Cassman Brown tests for a temporary injunction

Holding

The Court found the tripartite conditions not clearly satisfied on affidavit evidence, as ownership of the suit properties was hotly contested and resolvable only at trial

Reasoning

The Court applied Giella v Cassman Brown as restated in Nguruman. It held that the ownership of the suit properties and management of the public utility plots were in dispute between the Plaintiff and the 2nd Defendant, each laying claim and accusing the other of meddling. Such disputed facts cannot be resolved on affidavit evidence and require witness testimony at the main trial.

p. 4
02

The nature and proper scope of a status quo order

Holding

A status quo order differs from an injunction, may be originated by the court sua motu, serves case management and preservation purposes, and must be clearly framed

Reasoning

Relying on Republic v NET Ex-parte Palm Homes, KALPA v Co-operative Bank, Fatuma Abdi Jillo v Kuro Lengesen and Thugi River Estate, the Court distilled that status quo orders preserve the existing state of affairs, prevent prejudice pending trial, and need not rest on proof of a prima facie case. The Court accordingly issued a status quo order preserving the suit properties rather than granting the injunction sought.

p. 6

Legal principles established

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  • A status quo order is an ancillary preservation order distinct from an injunction and does not depend on proof of a prima facie case
  • A court may originate a status quo order on its own motion in exercise of its general jurisdiction, as a case management strategy, but must clearly describe the state of affairs to be preserved

Court orders

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  1. 1.An order for status quo to be maintained on the suit properties, meaning no interference with quiet possession, no sub-division, selling and/or allocating to third parties, of the listed L.R. numbers until the matter is heard and determined
  2. 2.That peace and tranquility be maintained by all parties and their agents at the suit property at all times during the pendency of the suit
  3. 3.That the OCS Kasarani Police Station do supervise compliance of the orders issued
  4. 4.Costs shall be in the cause

Authorities

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Legislation

  • Civil Procedure RulesOrder 40 Rule 1(a) and (2)
  • Civil Procedure ActSections 1A, 1B, 3A and 63(e)
  • Land Registration Act No. 3 of 2012Sections 24(a) and 25(1)
  • Constitution of the Republic of Kenya 2010Articles 40 and 159

Cases cited (7)

  • Giella vs. Cassman Brown & Co. Ltd
    1973 E.A 358
  • Nguruman Ltd v. Jan Bonde Nielsen & 2 Others
    [2014] eKLR
  • Mrao Ltd v. First American Bank of Kenya Ltd & 2 Others
    [2003] eKLR
  • Republic v National Environment Tribunal, Ex-parte Palm Homes Limited & Another
    [2013] eKLR
  • Kenya Airline Pilots Association (KALPA) v Co-operative Bank of Kenya Limited & another
    [2020] eKLR
  • Fatuma Abdi Jillo v Kuro Lengesen & another
    [2021] eKLR
  • Thugi River Estate Limited & Another v National Bank of Kenya Limited & 3 Others
    [2015] eKLR
Jurisdiction invoked
Order 40 Rule 1(a) and (2) and Order 51 of the Civil Procedure Rules; Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Sections 24(a) and 25(1) of the Land Registration Act; Articles 40 and 159 of the Constitution

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, "Owino, Ndoga & Okemwa (Suing in their Representative Capacities as the Secretary, Chairman and Treasurer Respectively of Tassia Welfare Association) v Board of Trustees National Social Security Funds & another (Environment & Land Case E161 of 2023) [2024] KEELC 5528 (KLR)", Case Analysis (2024). Not stated in the judgment (Notice of motion dated 7/11/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5528/eng@2024-07-15

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