Musiega & another (Suing as Personal Representatives of the Estate of Joash Adamba) v Mwamabavu & another (Environment and Land Case 30 of 2023) [2025] KEELC 5843 (KLR)

The court reasoned that the dispute concerns ownership and validity of the title to Kwale/Kinondo/532, a serious matter. Citing authority on the purpose of status quo orders in land matters, it held it better to preserve the existing state of affairs than risk a greater injustice. Status quo orders are a case-management tool distinct from injunctions and require no proof of a prima facie case, so both parties' interests were preserved without prejudice pending determination.

Applying Order 2 Rule 15(1) and authorities on striking out pleadings, the court held the jurisdiction is discretionary and sparingly exercised. From the pleadings and the 1st Defendant's own admission, the property is registered in his brother's name holding it in trust for the beneficiaries including him; any orders over the property would affect him. A claim with some chance of success on the plaint's allegations is reasonable, so the suit could not be summarily dismissed.

The court applied Order 1 Rule 9 of the Civil Procedure Rules and the Court of Appeal's decision in William Kiprono Towett & 1597 Others v Farmland Aviation, confirming that a suit cannot be defeated by misjoinder or non-joinder, and Zephir Holdings on what constitutes a proper party. Having found a cause of action and stake in the property, the 1st Defendant was a necessary party and the misjoinder assertion automatically failed.

Relying on Section 27(1) of the Civil Procedure Act, under which costs follow the event, the court nonetheless found that given the circumstances of the interlocutory applications - where neither application wholly succeeded or failed - the just order was that costs be held in the cause, to be determined at the conclusion of the suit.