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ELCPartially AllowedMemorandum of Appeal dated 28/2/2025, challenging Maralal MCELC/E011 of 2024· [2025] KEELC 1380 (KLR)

Seneiya Special School Suing Thro’ is Board of Management & 2 others v Samburu Handicap Education & Rehabilitation Programme (Suing Thro’ Its Registered Trustees - SHERP) (Environment and Land Appeal E010 of 2025) [2025] KEELC 1380 (KLR)

Environment and Land Court
20 March 2025
1,285 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 was an appeal from the ruling of Hon. T.A Sitati (PM) delivered on 27/2/2025 in Maralal MCELC/E011 of 2024, filed together with an application for stay of execution of the ruling and stay of proceedings in the trial court pending appeal. The appellants, through Sonia Wanjeri, an advocate in the office of the Attorney General, contended that the trial court's order, though framed as a temporary injunction, was in substance permanent and would evict them from the suit property LR 1834, Maralal Catholic area, where special needs children are housed. The respondent, through Grace S. Lebei, its founder, explained that the trial court had granted interim status quo orders on 28/11/2024 and, after an inter partes hearing, restrained the appellants from constructing on or trespassing on the parcel, with the suit scheduled for hearing on 17/4/2025. The court noted the substantive dispute remained live before the magistrates' court under a 60-day hearing timetable. Agreeing that a blanket injunction could effectively evict the appellants, and guided by Thugi River Estate, Mugah v Kunga and Shimmers Plaza on status quo orders in land matters, the judge invoked Sections 3A and 78 of the Civil Procedure Act. The court substituted the trial court's injunction with an order of maintenance of status quo - the appellants neither to be evicted nor to undertake any constructions - remitted the dispute to the trial court for hearing of the substantive issues, marked the appeal file closed, and directed each party to bear their own costs of the appeal. Judgment delivered at Nanyuki on 20 March 2025.

Key legal issues

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01

Effect of the trial court's injunctive order

Holding

The court agreed with the appellants that the blanket injunction could result in their eviction since the respondents had sought restraint from remaining on or trespassing on the property

Reasoning

The trial court's order was framed as a temporary injunction but the underlying application sought to restrain the appellants from entering, remaining or trespassing on the suit property. A blanket injunction on such terms could effectively evict the appellants, who house special needs children on the property, before the substantive dispute is heard.

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02

Appropriate appellate order pending trial

Holding

The court substituted the injunction with a defined status quo order and remitted the dispute to the trial court

Reasoning

Relying on Thugi River Estate and Shimmers Plaza, the court found that status quo orders preserve the subject matter in land disputes and define the existing state of affairs at the time of the order. With the substantive suit scheduled for hearing in April 2025, escalation to finality was unwarranted; a status quo order balancing both parties was appropriate.

p. 2

Legal principles established

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  • In land matters, status quo orders preserve the subject matter of the dispute
  • Status quo means the existing state of things at the time the order is made

Court orders

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  1. 1.An order of maintenance of status quo in place of the injunction given by the trial court on 27.2.2025, namely that the appellants shall not be evicted from the suit property and shall not undertake any constructions on it
  2. 2.The dispute is remitted back to the trial court for hearing and determination of the substantive issues
  3. 3.The appeal file is marked as closed and each party is to bear their own costs of the appeal

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 78

Cases cited (5)

  • Thugi River Estate Limited & another v National Bank of Kenya Limited & 3 others
    [2015] eKLR
  • Mugah v Kunga
    [1988] KLR 748
  • Texaco Ltd v Mulbery Ltd
    [1972] 1 WLR 814
  • Shimmers Plaza Limited v National Bank of Kenya Limited
    [2015] eKLR
  • Daniel Kinyanjui Gitau & 227 others v Mary Ruguru Njoroge
    [2020] eKLR
On appeal from
Magistrates' Court, Maralal
MCELC/E011 of 2024
Jurisdiction invoked
Section 78 of the Civil Procedure Act (appellate powers)

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, "Seneiya Special School Suing Thro’ is Board of Management & 2 others v Samburu Handicap Education & Rehabilitation Programme (Suing Thro’ Its Registered Trustees - SHERP) (Environment and Land Appeal E010 of 2025) [2025] KEELC 1380 (KLR)", Case Analysis (2025). Memorandum of Appeal dated 28/2/2025, challenging Maralal MCELC/E011 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1380/eng@2025-03-20

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