Mudavadi v Nasibu Holdings Limited (Environment and Land Appeal E002 of 2025) [2025] KEELC 3851 (KLR)
The bottom line
#A status quo order in Kenya only freezes the current situation; it cannot evict anyone or hand back land possession.
What this practically means
#Executive summary
#Key legal issues
#Defectiveness of Supporting Afidavit and leave to appeal
The affidavit objection fails; the orders appealed against fall within Order 43(4) as appeals as of right, and affidavits other than a Verifying Afidavit may be sworn on behalf of a party by anyone possessed of the facts
Counsel for the Applicant relied on Circuit Business Systems Ltd v County Government of Siaya on leave, and Peter Onyango Onyiego v Kenya Ports Authority on affidavits sworn on behalf of parties. The Respondent's objection that the deponent lacked locus standi and that no leave was sought did not persuade the court, which did not disturb the appeal on those grounds.
Whether status quo ante order should issue
Refused; the status quo as at 24 September 2024 would entail evicting the Respondent, which a status quo order cannot do
The Applicant had taken possession in July 2024 but that state was altered by a court order restraining his entry, which order is the subject of the appeal. Relying on Fatuma Abdi Jillo v Kuro Langesen, the court held a status quo order merely preserves the existing situation and cannot effect reinstatement to possession like an injunction might.
Whether proceedings in the lower court should be stayed pending appeal
Granted; the appeal is from an interlocutory ruling and should be disposed of expeditiously, and no prejudice would be occasioned to the Respondent who remains in occupation
Applying Niazsons (K) Ltd v China Road & Bridge Corporation, where the appeal may render the orders made nugatory, stay should be granted. Balancing Kenya Wildlife Service v James Mutembei's stringent test, the court found no prejudice to the Respondent in occupation, and granted stay of further proceedings in the subordinate court suit pending determination of the appeal.
Legal principles established
#- An order of status quo is an auxiliary preservation order distinct from an injunction and does not require proof of a right or prima facie case
- A status quo order cannot be used to restore possession removed by a court order
- Stay of proceedings is a grave judicial action with a high and stringent test
Court orders
#- 1.Stay of further proceedings in Vihiga PM MCLE NO. E055 OF 2024 granted pending the hearing and determination of the appeal
- 2.Appeal to be mentioned on 12/6/2025 for directions; record of appeal to be filed and served before then
- 3.Each party to bear own costs of the application
- On appeal from
- Vihiga Principal Magistrate's Court
- Vihiga PM MCLE NO. E055 OF 2024
- Jurisdiction invoked
- Articles 23 and 40 of the Constitution of Kenya, 2010; sections 1A, 1B and 3A of the Civil Procedure Act; Order 40 Rules 6 and 7 and Order 50 Rule 1, Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mudavadi v Nasibu Holdings Limited (Environment and Land Appeal E002 of 2025) [2025] KEELC 3851 (KLR)", Case Analysis (2025). Vihiga High Court Civil Appeal (ELC) – Notice of Motion dated 30th January 2025 (appeal number not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3851/eng@2025-05-15
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.