Ndehi & another v County Government of Nairobi & another

4. During the subsistence of this suit, the 2nd Respondent passed away and was substituted with his legal representative, Grace Akinyi vide the application dated 28.7.2022. 5. The appeal was canvassed by way of written submissions which I have duly considered. This being an interlocutory appeal, the court is guided by the principle of law that an appellate court is estopped from interfering with the exercise of judicial discretion save in some circumstances. The said circumstances were stated in United India Insurance Co. Ltd. versus East African Underwriter (Kenya) Ltd [1985] EA 898 as cited by the Court of Appeal in Danson Mwangi Makanga v Mary Muthoni Githui [2017] eKLR as; “ …The Court of Appeal is only entitled to interfere if one or more of the following matters are established; rst that the judge misdirected himself in law; secondly, that he misapprehended the facts; thirdly that he took account of considerations of which he should not have taken account; fourthly that he failed to take account of considerations of which he should have taken account; fthly, that his decision albeit discretionary one, is plainly wrong.” 6. Can the trial court be faulted for issuing an order of maintenance of status quo?. 7. In the rst prayer in the plaint dated 18.3.2019, the appellants had indicated that the 2nd respondent herein was a trespasser, and in their application of even date, they wanted vacant possession through an order of mandatory injunction. The plain import of those prayers is that the appellants were not in possession of the suit premises. The trial court cannot hence be faulted for making a nding that the appellants were not in possession of that land. 8. What more, it is quite apparent that allowing the application dated 18.3.2019 would have been tantamount to issuance of a major relief at the interlocutory stage. In the case of Daniel Atibu Jasimba v Ainea Sandanyi Magana [2013] eKLR, the court had this to say in respect of a prayer relating to a major relief; “ Since the Plainti’s suit is for eviction of the defendant from the said residence, such an injunction will amount to granting a major relief in the suit without the benet of a hearing”. 9. In the case of Cyanamid Co. v Ethicon Ltd (1975) 1 ALL ER 504; (1975) A.C 396 HL cited in Tritex Industries Limited & 3 others v National Housing Corporations & another [2014] eKLR, it was held that; “ It is no part of the court’s function at this stage of the litigation to try to resolve conicts of evidence on adavit as to facts on which the claims of either party may ultimately depend, nor to decide dicult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial”. 10. I nd that the question of ownership ought to be dealt with in a full trial and not in interlocutory applications. In the case of Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR, the court stated that in establishing whether an applicant has a prima-facie case, the court does not hold a mini trial and must not examine the merits of the case closely. https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22087/eng@2023-12-04 2

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11. In Bakari Shaban Gakere v Mwana Idd Guchu & 3 others [2022] eKLR, the court had this to say on matters “status quo”; “ An order for status quo technically means that things be left as they are until the determination of a certain facts…” 12. It is the nding of this court that the order of status quo was the most appropriate in the circumstances of this dispute. 13. It is noted that a period of over 4 years has gone by from the time the order appealed against was issued. The appellants ought to embrace the overriding objectives set out under Section 1A and 1B of the Civil Procedure Act as well as Article 159 (2) (b) of the Constitution and focus on the substantive issues in the main trial instead of litigating through interlocutory processes. See Lawrence Kinyua Mwai v Nyariginu Farmers Co Ltd & another [2019] eKLR. 14. In the nal analysis, I nd that this appeal is not merited, the same is hereby dismissed with costs to the respondents. The le is to be remitted back to the trial court for disposal of the main suit. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 4TH DAY OF DECEMBER, 2023 THROUGH MICROSOFT TEAMS. LUCY N. MBUGUA JUDGE In the presence of:Kibara for Appellant Ojong’a for 1st Respondent Court Assistant: Brian https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/22087/eng@2023-12-04 3

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