Onyango & another

PAULINE AKINYI (SUED AS PERSONAL REPRESENTATIVE AND/ OR ADMINISTRATIX OF THE ESTATE OF NYAKWAKA RAPHAEL) ...................................................................................... 1ST RESPONDENT ISAAC OCHIENG ......................................................................... 2ND RESPONDENT INTROPEAK ENGINEERING & CONSTRUCTION COMPANY LTD .................................................................................................. 3RD RESPONDENT RULING 1. The Petitioners led the present Petition on 25th September 2025 concurrently with the Notice of Motion application of even date seeking the following orders;1. Spent 2. That the Honourable Court be pleased to grant and issue an order of temporary injunction restraining the respondents whether by themselves, their agents, servants, employees, contractors or any other person acting under their instructions from continuing with ongoing construction, management, installation of machinery preparation of leaching ponds and active operations of the gold leaching plant situated on land parcel No. South Sakwa/Migwena/345 pending the hearing and determination of this application. 3. That the Honourable Court be pleased to grant and issue an order of temporary injunction restraining the respondents whether by themselves, their agents, servants, employees, contractors or any other person acting under their instructions from continuing with ongoing construction, management, installation of machinery preparation of leaching ponds and active operations of the gold leaching plant situated on land parcel No. South Sakwa/Migwena/345 pending the hearing and determination of the petition herein. 4. That the Honourable Court be pleased to issue a further order restraining the 1st respondent from leasing, selling, transferring, assigning or in any other manner dealing with land parcel No. South Sakwa/Migwena/345 in a way that supports or advances the operation of the gold leaching plant until the petition is heard and determined. 5. That the Honourable Court be pleased to issue a further order restraining the 1st respondent from leasing, selling, transferring, assigning or in any other manner dealing with land parcel No. South Sakwa/Migwena/345 in a way that supports or advances the operation of the gold leaching plant until the petition is heard and determined. 6. That the costs of this application be in the cause. 2. The application is premised on the grounds on its face and the depositions in the supporting adavit of the applicant Charles Ambula Onyango on his behalf and that of the 2nd applicant and as mandated by the members of Central & South- Sakwa wards, Rateng', Mabinju and Obede villages, Bondo SubCounty. 3. The applicant avers that he knows by his own knowledge that the 1st respondent is the daughter to Raphael Nyakwaka- deceased the registered proprietor of land parcel No. South Sakwa/Migwena/345 (suit property). Further, that she has leased the same to the 2nd respondent and who has secured the services of the 3rd respondent, to set up a gold leaching plant on the suit parcel. A copy of the Certicate of Ocial search is attached. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18649/eng@2025-12-22 2

page 2 of 8

4. It is averred that sometime in July 2025, the 2nd and 3rd respondents moved machinery and personnel onto the suit property and commenced excavation and construction works of four unlined gold leaching ponds without obtaining the necessary environmental and regulatory approvals. 5. It is averred that aggrieved by the above activities, the applicants presented a formal petition dated 28th July, 2025 to the Bondo Sub-County Administrator raising objections and concerns on the illegality and dangers posed by the facility. A copy of the Petition dated 28th July, 2025 is annexed. That the same was responded to on 29th July 2025, the Sub-County Administrator responded to conrming that the 2nd and 3rd respondents had indeed commenced construction works at the facility without complying with mandatory requirements of the law, including environmental approvals and public participation. A copy of the response dated 29th July, 2025 is annexed. 6. The deponent states prior to the above the National Construction Authority {NCA} had undertaken an inquiry into the construction and on 22nd July 2025 it issued a work suspension order addressed to the 2nd respondent to stop the works on account of non- compliance, including absence of approved building plans and failure to engage licensed professionals. That the same was deed works continued with excavation, installation of machinery and establishment of four unlined leaching ponds in total disregard of the law. Annexed is a copy of the {NCA} work suspension order dated 22nd July 2025. 7. It is further deponed that on 5th August 2025, the Siaya County Director of Public Participation and Civic Engagement issued an internal memo resolving that the project be suspended until the 2nd and 3rd respondents had achieved full legal compliance and carried out proper community sensitization. Attached is a copy of the Internal Memo dated 5th August 2025. 8. It is asserted that despite all these interventions, the 2nd and 3rd respondents have continued with their unlawful activities, and unless restrained by the Court they will proceed with operations causing irreversible environmental damage and exposing the community to serious health risks. Response 9. The 2nd Respondent responded to the main petition vide a replying adavit sworn on 6/10/2025. The 2nd respondent also led a further adavit sworn on 25/10/2025 in response to the petition. In the later adavit the deponent states that he has obtained all necessary documents, licences and approvals required by law to undertake the gold leaching operations in compliance with the relevant environmental and mining regulations following inspection and public participation. That the 2nd respondent has put the relevant safety , waste Management and pollution control measures required under the law. Attached are the EIA Licence and Certicate of Compliance from NCA. 10. It is averred that the allegations raised by the Petitioners are misleading and overtaken by events. The Petitioners responded further to the above citing submission of conicting documents emanating from the same source that is the County Land Registry and sought that the 1st and 2nd defendants be cross examined for the obvious perjury. 11. The court declined the invitation for cross examination for the reason the land registrar could be summoned to court to avail the parcel le and be cross examined on the same as the maker and which would be more ecient in terms of use of the judicial time. Respondents Reply to the Application 12. The 2nd Respondent responded to the Notice of Motion vide a replying adavit sworn on 8/12/2025. He depones that he was issued with NEMA EIA License dated 16th October 2025 and NCA Certicate of compliance valid up to 25th October 2027. The copies are annexed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18649/eng@2025-12-22 3

page 3 of 8

13. On advise of counsel on record for him the respondent states a certicate of compliance issued by the NCA supersedes any previous suspension order issued by the same body. That the suspensions were lifted on 27th October 2025. A copy of NCA Lifting of Suspension Notice is attached. 14. It is deponed that part (c) of the certicate is an evidential issue whose veracity or lack can only by tested during the hearing of the main petition. In response to paragraph 2 of the adavit in support of the notice of motion the applicant attached a copy of the current search for SOUTH SAKWA/ MIGWENA/345 dated 29th October 2025 showing him as the current registered proprietor. 15. The contents of paragraph 3,4,5,6,7 & 8 of the adavit in support of the application are stated to have been overtaken by events as all relevant environmental and regulatory approvals having been obtained. That the impugned actions began in July 2025 but the applicants sought redress at the tail end of September 2025. The application is termed as an afterthought to delay the hearing of the main petition. The court is invited to dismiss the application. Further Supplementary Adavit 16. The applicants in rejoinder led a further supplementary adavit sworn by Charles Ambula Onyango on 16/12/2025. It is asserted that from the documents led by the 1 and 2" respondents, none of them has disputed the documents contained in the applicants Supplementary Adavit dated the 8/11/2025. 17. The deponent avers that is not in dispute that the suit property was adjudicated in the name of Nyakwaka Raphael (see annexure CAO 2(b) in the Supplementary Adavit), that the 1st respondent is the daughter of the late Nyakwaka Raphael and that the Green Card annexed to the Supplementary Adavit reects the correct position of the register for the suit property and that the Identity Cards for both the 1st and 2nd respondents are the correct ones (CAO 3(a) and CAO 3(b) respectively). 18. It is averred that as per the Green Cards marked CAO 1(a), the 2nd respondent is indicated as the 1st registered owner and the land was registered in his name on the 24/6/1974. It is noted that further to the Replying Adavit dated 6th October, 2025 both the 1st and 2nd respondents were born on the 8th October, 1989 and 10th October, 2000 respectively. 19. The deponent asserts that having realized that the Register has been manipulated, the 2nd respondent led a Certicate of Ocial Search indicating that now he is the 3rd entrant in the register and not the rst. According to the deponent and based on the alleged falsied title documents presented to the relevant Government Departments, the County Government of Siaya revoked all the approvals and licences issued to the 2nd respondent and which is privy to the respondent and which was why he has not included the earlier approval that he had been given. A copy of the said approval is annexed. 20. It is stated that once the County Government of Siaya as the 1st entity issues the approvals, then the other Government Agencies will follow suit. It is alleged the County Government of Siaya having revoked the approval issued to the 2nd respondent on 8th December, 2025 then it follows that the approvals and licences issued to the 2nd respondent prior to this date are of no legal consequence. That it is therefore in the interest of justice, that the orders sought herein be granted. Submissions 21. The application was heard by way of written submissions. The applicants’ submissions are dated 16/12/2025 and led on the same date. The respondents’ submissions were not in the CTS. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18649/eng@2025-12-22 4

page 4 of 8

Analysis and Determination 22. The court has considered the application, supporting adavit, Further adavit and further supplementary adavit, the responses to the application and the submissions on record. The main issue for determination is whether the orders sought in the application dated 29/09/2025 should be granted. 23. Before I delve into a determination of the above issue, I must rst clarify that the present application was not certied urgent by this court for the reason that I noted that there had been engagements on the matter since the month of July 2025. However, on 5/12/2025 following the court suggestion that parties abandon the application and pursue the hearing of the substantive petition, Mr. Anyul for the applicants implored the court that the matter was generating a lot of tension on the ground and thus the need for the court to determine the application. The court acquiesced though inadvertently as the matter had not been certied urgent. Counsels agreed that the court should reserve a date for ruling ahead of their compliance with directions of the court on interalia responses to the application, further response thereto and ling of submissions. 24. The application has been brought under the provisions of Order 40 Rule 1,2,3 and 4 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act. 25. Order 40 Rule 1 of the Civil Procedure Rules 2010 gives the court discretion to grant an injunction as the court thinks t where a property is in danger of being wasted, damaged, alienated, sale and disposition until the determination of the suit or until further orders of the court. The powers are discretionary. 26. Principles have also been laid down by the courts to guide on the exercise of the discretion starting with the celebrated case of Giella vs Cassman Brown (1973) EA 358 which was also cited by counsel for the applicants. An applicant must show a prima facie case with a probability of success, the applicant must demonstrate that they will suer irreparable injury that cannot be adequately compensated by an award of damages if the court does not intervene by granting the injunction and where in doubt, the court will weigh and grant the orders based on the balance of convenience. 27. On the requirement to establish a prima facie case, it is trite that a prima facie case is one that need not be won by the applicants. Infact the court is not required to delve into the merits of the case at this point. All that an applicant need to demonstrate is the existence of a right that is in danger of being infringed upon by the other part. The Court of Appeal in Mrao Ltd Versus First American Bank of Kenya Ltd (2003) EKLR commenting on what amounts to a prima facie case stated thus: “ ... in civil cases, it is a case in which, on the material presented to the court a tribunal properly directing itself will conclude that there exists a legal right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.” 28. The applicants state that they are residents of Central & South Sakwa Wards Rateng;Mabinju and Obede villages Bondo Subcounty. The location of where the activities complained of is not in dispute and are conrmed at page 33 of the EIA Comprehensive Project Report annexed in the respondents response to the Petition. They have raised concerns over their right to a clean and healthy environment as guaranteed by the Constitution of Kenya 2010. The concerns raised were conrmed as pertinent and weighty by the County Government of Siaya in the letter dated 29/07/2025. 29. Based on the foregoing it is this courts nding that the applicants have established a prima facie case. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18649/eng@2025-12-22 5

page 5 of 8

30. The applicants raised issue with the fact that sometime in July 2025, the 2nd and 3rd respondents moved machinery and personnel onto the suit property and commenced excavation and construction works of four unlined gold leaching ponds without obtaining the necessary environmental and regulatory approvals. 31. While the contents of paragraph 3,4,5,6,7 & 8 of the adavit in support of the application are stated to have been overtaken by events as all relevant environmental and regulatory approvals have been obtained it is not denied that the impugned actions indeed took place. The four leaching tanks were indeed constructed. 32. The 2nd respondent in his response to the application has stated that he has now obtained the relevant approvals including a Licence issued by NEMA on 16/10/2025 subject to attached Terms & Conditions and NCA Certicate of Compliance. 33. It has been deponed that the County Government of Siaya revoked the approval issued to the 2nd respondent on 8th December, 2025. A copy of the notice of revocation has been attached. It is stated that this therefore renders the approvals issued in October 2025 null. The respondents on the other hand rely upon the impugned licences to state the application has been overtaken by events. 34. The court will not venture into the validity or otherwise of the licences that have been presented by the respondents at this juncture as this is a substantive issue. However, what is clear to the court is that a serious doubt has been cast on the same and which is the substratum upon which the project will continue. Even then I have not seen other approvals from the relevant Ministry in charge of Mining. The court is therefore inclined to consider where the balance of convenience tilts. 35. A list of over 300 hundred community members has been attached and who have expressed their concerns as to infringement of their right to a healthy environment yet there are suggestions by the respondents that there has been public participation. This also becomes an issue of public interest and may not be easily ignored by a stroke of the pen rendering the application as overtaken by events. Additionally, and fundamentally some of the licences issued are said to have been cancelled and their validity is being called into question. The integrity of proof of land ownership documents where the project is anchored has also been questioned and which can only be determined upon hearing the parties. 36. It is my considered view that the balance of convenience tilts in favor of maintaining the status quo until the issues raised are interrogated and or resolved. I nd it pertinent to explain the meaning and rationale of status quo as guided by caselaw. 37. In Thugi River Estate Limited & another Vs National Bank of Kenya Limited & 3 others [2015] e K.L.R. Justice Anguto (may his soul rest in peace) explained the circumstances under which orders for status quo may be issue thus Firstly, an order of status quo will issue through a judicial process. Where the court in exercise of its general or statutory jurisdiction grants orders for maintenance in situ of a particular state or set of facts… the second or alternative order for status quo is the one issued by the court as a case management strategy. It is issued to provide assistance to the case. It also maintains a particular state of aairs or set of facts. Unlike a conservatory order or injunctive order, it is not descriptive. It is originated either by the court or by the consent of the parties. Often the court would not have been moved by either party. The court then expects an existing state of aairs or facts be preserved until a particular occurrence or until the courts’ further orders. It is intended to also freeze the state of aairs. State of aairs however do not https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18649/eng@2025-12-22 6

page 6 of 8

always remain static, so it is always crucial for the court to be very specic and neat in its description of what state of aairs is to be preserved.” 38. In Republic Vs National Environment Tribunal, Ex-parte Palm Homes Limited & Another [2013] e KLR, Odunga J. stated, “ When a court of law orders or a statute ordains that the status quo be maintained, it is expected that the circumstances as at the time when the order is made or the statute takes eect must be maintained. An order maintaining status quo is meant to preserve existing state of aairs...Status quo must therefore be interpreted with respect to existing factual scenario..." 39. The court in the case of Fatuma Abdi Jillo v Kuro Lengesen & another [2021] eKLR gave a distinction on the nature of status quo orders vis a vis injunctive orders, it was stated as follows: “ Murithi Jin Boabab Beach Resort as quoted by F. Tuiyot Saifudeen Abdullahi & 4 Others in Mombasa High Court Misc. Civil Cause No. 11 of 2012, described the nature of a status quo order as follows:“In my view, an order to Status quo to be maintained is dierent from an order of injunction both in terms of the principles for grant and the practical eect of each. While the latter is a substantive equitable remedy granted upon establishment of a right, or at interlocutory stage, a prima facie case, among other principles to be considered, the former is simply an ancillary order for the preservation of the situation as it exists in relation to pending proceedings before the hearing and determination thereof. It does not depend on proof of right or prima facie case. In its eect, an injunction may compel the doing or restrain the doing of a certain act, such as, respectively, the reinstatement of an evicted tenant or the eviction of the tenant in possession. An order for status quo merely leaves the situation or things as they stand pending the hearing of the reference or complaint.” 40. The respondent has deponed that upon advice from the government agencies that he would require to full certain statutory obligations, suspended activities on the suit property and that there are no ongoing gold leaching activities that were being undertaken on the property. It is also not in dispute that the respondent is currently in possession. I therefore see no prejudice that will be suered to maintain this state aairs. For me I think this would be the lower risk. In the case of Amir Suleiman Vs Amboseli Resort Limited [2004] eKLR the court emphasised thus in looking at the “balance of convenience” “ The court in responding to prayers for interlocutory injunctive reliefs should always opt for the lower rather than the higher risk of injustice.” 41. The following orders therefore issue to dispose of the application dated 29th September 2025. 1. That an order of status quo hereby issues against the respondents whether by themselves, their agents, servants, employees, contractors or any other person acting under their instructions from continuing with any ongoing construction, installation of machinery, preparation of leaching ponds and any active operations of any gold leaching plant situated on land parcel No. South Sakwa/Migwena/345 pending the hearing and determination of this petition and or further orders of the court. 2. The respondents being in possession and as part of the status quo shall maintain possession of the land parcel No. South Sakwa/Migwena/345 until further orders of the court. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18649/eng@2025-12-22 7

page 7 of 8

3. That the status quo on the register of the land parcel No. South Sakwa/Migwena/345 shall be maintained as at the date of this ruling. 4. The costs of the application shall abide the outcome of the petition. It is so ordered. DATED, SIGNED AND DELIVERED AT SIAYA THIS 22ND DAY OF DECEMBER 2025 HON. LADY JUSTICE A. E. DENA JUDGE 22/12/2025 Ruling delivered virtually through Microsoft Teams Video Conferencing Platform in the Presence of: Mr. Anyul for the Petitioners applicants No appearance for the respondents. Court assistant: Ms. Mukami. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18649/eng@2025-12-22 8

page 8 of 8