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ELCPartially AllowedNot stated in the judgment· [2026] KEELC 2750 (KLR)

Mwaura & 5 others v Mbuyu Marijani Villas Limited (Enviromental and Land Originating Summons E015 of 2025) [2026] KEELC 2750 (KLR)

Environment and Land Court of Kenya
24 April 2026
LNL.L Naikuni
2,974 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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A Kwale court froze two Diani land parcels, protecting families living there from any sale or eviction until ownership is decided.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kwale on a Notice of Motion dated 31st July 2025 by six Applicants who, in a contemporaneous Originating Summons, claim ownership of land registered as Kwale/Diani S.S/5336 and 5337. They sought maintenance of status quo and preservation of the parcels pending the hearing of the suit, contending the land belonged to their late parents settled there since the 1970s and that the Respondent company, which acquired and sub-divided the larger parcel formerly Kwale/Diani/453, might further sub-divide or transfer it, offending the doctrine of lis pendens. The Respondent, through a replying affidavit sworn by its director Zaverio Kioko Mutua, denied the resettlement narrative, asserted purchase and possession, alleged the Applicants had agreed to vacate, and urged dismissal for failure to prove a prima facie case, relying on the Giella and Nguruman injunction principles. The court framed three issues and, after reviewing authorities on the meaning and purpose of status quo orders, held that ownership was a weighty and triable matter and that the Applicants' occupation and developments were documented. Invoking Articles 25(c), 50 and 159 of the Constitution, the ELC Act, the Land Registration Act and the Land Act, the court found the application merited and issued status quo and preservation orders over both parcels pending the hearing and determination of the suit. On costs, exercising discretion under Section 27(1) of the Civil Procedure Act, it directed each party to bear its own costs and scheduled a pre-trial conference for 29th June 2026 and hearing for 26th October 2026.

Key legal issues

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01

Whether status quo/preservation orders should issue over the suit land pending hearing and determination of the suit

Holding

The application was merited; status quo and preservation orders were issued over Kwale/Diani S.S/5336 and 5337 pending the hearing and determination of the Originating Summons.

Reasoning

The court accepted that the purpose of status quo orders is to preserve the existing state of affairs. The suit properties are registered in the Respondent's name, but the Applicants demonstrated occupation through photographs showing vast developments. Ownership is a weighty and triable matter, and the Applicants' apprehension of eviction before determination was persuasive. Invoking fair hearing provisions of the Constitution, the ELC Act, the Land Registration Act and the Land Act, and the doctrine of lis pendens, the court found preservation prudent in the interest of natural justice and equity.

p. 6
02

Who bears the costs of the application

Holding

Each party to bear its own costs.

Reasoning

Costs are discretionary under Section 27(1) of the Civil Procedure Act. Though costs generally follow the event, that principle compensates rather than penalizes. Considering the nature of the orders sought and the prevailing circumstances, the court saw no sufficient reason to award costs to either party.

p. 7

Legal principles established

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  • An order maintaining status quo is meant to preserve the existing state of affairs as at the time the order is made.
  • By maintaining status quo the court safeguards the subject matter of the dispute from erosion or radical change pending determination.
  • Costs follow the event but are compensatory, not penal, and remain at the court's discretion under Section 27(1) of the Civil Procedure Act.

Court orders

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  1. 1.That the Notice of Motion application dated 31st July 2025 be and is hereby found to be merited and hence allowed accordingly.
  2. 2.That pending the hearing and determination of this suit, orders of maintaining status quo and or preserving all those parcels of land registered as Kwale/Diani S.S/5336 & Kwale/Diani S.S/5337 are hereby issued.
  3. 3.That there be a Pre-Trial conference conducted on 29th June, 2026 in accordance with Order 11 of the Civil Procedure Rules, 2010, and thereafter a hearing on 26th October, 2026 preferably through Physical means.
  4. 4.That each party to bear its own costs.
Jurisdiction invoked
Sections 3 & 13 of the Environment and Land Court Act, No. 19 of 2011; Section 101 of the Land Registration Act, No. 3 of 2012; Section 150 of the Land Act, No. 6 of 2012; Articles 25(c), 50(1) & (2) and 159(1) & (2) of the Constitution of Kenya, 2010

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, "Mwaura & 5 others v Mbuyu Marijani Villas Limited (Enviromental and Land Originating Summons E015 of 2025) [2026] KEELC 2750 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2750/eng@2026-04-24

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