Mambo & 3 others

MWINJI MWABUGU, the 4th Plaintiff/Applicant herein. Principally, it was brought under the inherent jurisdiction of the Court, invoking the provision of Sections 3 and 3A of the Civil Procedure Act, Cap. 21, Article 159 (2)(b) of the Constitution of Kenya, 2010 and Section 13 (3) and (7) of the Environment and Land Court Act, No. 19 of 2011. 2. Upon service, the application Defendant/Respondent through was opposed by the 3 rd filing of Grounds of the Opposition dated 22nd July, 2026 and a Replying Affidavit sworn by PETER BURUGU on even date. The Honourable Court shall be dealing with it in detail later on herein. II. The case by the 4th Plaintiff/Applicant 3. The 4th Plaintiff/Applicant sought for the following substantive orders:a) Spent. b) That pending the hearing and court application the Honourable injunction as against the determination do 3rd issue a of this temporary Defendant/Respondent restraining it through it's employees, servants and/or agents from alienating, transferring, leasing, sub-dividing, selling, ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 2 of 60

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constructing or proceeding with construction on Plot No. KWALE/DIANI BEACH BLOCK 103. c) That pending the hearing and determination of the intended appeal from this court's decree, the Honourable court do issue a conservatory Defendant/Respondent order restraining through it's the employees, 3rd servants and/or agents from alienating transferring, leasing, subdividing, selling constructing or proceeding with construction on Plot No. KWALE/DIANI BEACH BLOCK/103. d) That in the alternative the Honourable Court do issue a conservatory order to preserve the suit property pending hearing and determination of the intended appeal. e) That costs of this application be provided for. 4. The application is premised on the grounds, testimonial facts and the averments made out by the affidavit of MAHMOUD MWINYI MWABUGU sworn on 15th July, 2026. He averred that:i. He was the Applicant herein conversant with this matter and competent to swear this affidavit as he was fully conversant with the facts of this case. ii. He made this affidavit from matters within his own knowledge which were true to the extent that any statements made based on information or belief, the ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 3 of 60

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sources of such information as hereinunder and verily believe the said statements to be true. iii. On the 9th July, 2026, the Honourable Court delivered it's Judgement in this matter wherein the court dismissed the suit in its entirety. iv. Being dissatisfied with the aforesaid Judgement, he instructed his advocates, Messrs. Oduor Siminyu & Company Advocates to lodge an appeal. He was informed that they have lodged and served upon the Respondents a Notice of Appeal. Annexed hereto and marked as "A" was a copy of the Notice of Appeal and request for typed proceedings. v. He was further advised by his advocates on record that if the suit property was not preserved by way of a conservatory order or injunction, their intended appeal would be rendered nugatory and make it useless to proceed to hearing of the appeal. vi. He was further advised by his advocate on record, that the Honourable Court had powers in exercise of it's ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 4 of 60

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inherent, residual jurisdiction and the overriding objective to grant the orders sought. vii. Unless restrained by the orders of this Honourable court, the 3rd Respondent had threatened to continue with construction and/or dispose off the suit property known as Land Reference Number Kwale/Diani Beach Block/103. viii. In the event the propėrty was sold or transferred to third parties, the Applicant stood to suffer prejudice as the intended appeal would be rendered nugatory as it would not be possible to recover the property. ix. The application had been done without undue delay. x. In the interest of justice and fairness, it was important that the orders sought be granted as the Respondents stood to suffer no prejudice. III. The Grounds of Opposition by the 3rd Defendant/Respondent 5. On 22nd July, 2026 the 3rd Defendant/Respondent herein object to the Notice of Motion application dated 15 th July, 2026 on the following grounds that:- - ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 5 of 60

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(a) The application was self-defeating and legally otiose as it failed to meet the requirements for grant for Conservatory Orders sought. (b) The application untenable and legally unsustainable as it failed to meet the legal threshold for grant of Temporary Injunctions as provided for under the provision of Order 42 Rule 6 (6) as read with Order 40 Rule 1(a) and (b) and Rule 2 of the Civil Procedure Rules, 2010. (c) The application was malicious and mischievous with the sole intention of curtailing the full enjoyment of the 3rd Defendant Constitutional right own property emanating from the fruits of the Judgment as delivered on 9th July, 2026. As such, the entire application violated the overriding objective of expeditious disposal of suits under Section 3 of the Environment and Land Court Act as read together with Article 159 of the Constitution. (d) The entire application dated 15 th July, 2026 was made in bad faith, incompetent, unmerited and an ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 6 of 60

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abuse of the processes of this Honourable Court, only fit for dismissal with costs to the 3rd Defendant/Respondent. IV. Replying Affidavit by the 3rd Defendant/Respondent 6. The 3rd Respondent opposed the application through Grounds of Opposition and a Replying Affidavit sworn by PETER BURUGU, a director of the Respondent, both dated 22 nd July, 2026. He averred as follows that:i. He was a male adult of sound mind, a Director of the 3 rd Defendant, familiar with the facts deponed to herein and clothed with the necessary authority to swear this Affidavit. ii. He had read the application dated 15 th July, 2026, where necessary, he had it explained to him by his advocates on record. In opposition he responded as hereunder that:- iii. In response to the content of Paragraphs 1, 2, 3 and 4 of the Supporting Affidavit, he did not admit therefrom in so far as it had to do with the application before this 4. Honourable Court. ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 7 of 60

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iv. In response to the contents of Paragraphs 5 and 6 of the Supporting Affidavit, he was advised by his Advocate on record that:(a) As to the prayer for conservatory orders; i. There was no proven harm, public interest or rights that had been threatened flowing from the Judgment delivered on 9th July, 20026 to meet the requisite threshold for conservatory relief. ii. He had been defending this suit for the past 20 years. He had to defend the fictitious allegations that the 4th Plaintiff had obtained title over his property through land adverse possession. Therefore, having been declared the legal, equitable, beneficial and registered owner of the suit property, there was no proof on the face of the application that he intended to alienate, transfer, subdivide or sell the property to defeat the main suit or even the appeal. iii. As such, any allegation that the 4 th Plaintiff would ELCC 247 of 2021 suffer any prejudice HON. JUSTICE L.L NAIKUINI sensational, Page 8 of 60

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misconceived and incorrect. Therefore, conservatory could not issue to protect harm that never existed. iv. In any case, he was occasioned great prejudice over the past 20 years defending fictitious allegation of by the 4th Plaintiff. The suit property housed his intended retirement home, the construction of which he was yet to finish due to the status quo order earlier issued by this Court on 6th February, 2024. v. He obeyed the said orders diligently, much to his detriment, which went to show that he had no intention to alienate, or in any other manner, do away with the said property. vi. In any case, there was no proof before this Court that any harm, allegedly to be suffered by the 4th Plaintiff, could not be adequately remedied through damages or Post - Judgment directives should their appeal succeed. ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 9 of 60

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vii. As a measure, without prejudice to his response herein, he had already made substantial financial investment in the construction of his retirement home. viii. Therefore, there was a real risk of adverse economic and infrastructural consequences of suspending the construction further. ix. Without prejudice to his opposition herein and in the alternative, to put both parties in an equal footing during the appeal, he prayed that orders do issue for the 4th Plaintiff to deposit as security the sum of Kenya (Kshs.10,000,000/=) Shillings either in Ten the Million Judiciary account or in a joint interest earning account in the names of my advocates on record and that of the 4th Plaintiff herein to cover the losses that continue being incurred by himself. x. Further to the security provided, the Honourable Court to order a time frame for compliance and in default, the conservatory orders so issued to ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 10 of 60

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lapse automatically without any further reference to this court. (b) As to the prayer for Interim Injunction:i. The temporary injunction sought was post Judgment yet the fights and interests of the parties herein had been conclusively determined in the Judgement. ii. The prayer for temporary injunction seeking to restrain him from using, enjoying and owning property yet a regular and valid Judgment of this Court had declared him the bona - fide, equitable, registered and beneficial proprietor of the suit property would violate the provision of Article 40 of the Constitution. iii. A temporary injunction simply could not issue as the Plaintiff had not established a prima facie case of ownership of the property and as such, the 4th Plaintiff could not claim any equitable remedy over his property. ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 11 of 60

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iv. There was no proof of any irreparable injury to be allegedly suffered by the 4th Plaintiff that could not be adequately compensated by damages if the order sought was not granted. v. On the other hand, there was a continual prejudice and irreparable injury that would occur to him if he was not allowed to finish the construction of his retirement home. vi. He had no other remedy open to him by which he could protect himself from the consequences of the said reasonably apprehended injury. vii. Granting an injunction to a non-occupying person who had nothing to lose, if the appeal took years to determine, would occasion him an even greater hardship as the property owner. viii. It was mischievous of the 4 th Plaintiff to underpin their application for interim injunction under Order 40 of the Civil Procedure Rules, 2010. It was obvious that the 4th Plaintiff was aware that they could not meet the stringent measures put ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 12 of 60

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into place by the letter of that order and had opted to circumvent it by quoting the overriding objective and articles of the Constitution. ix. The provisions of the overriding objective and the Constitution purported were wrongs and not panacea therefore for all could not override rules of procedure set by law. This Honourable Court should treat this application as an obvious intention to hoodwink, trick and mislead it into granting orders not provided for by law to an applicant who comes before it with unclean hands to abuse its processes. x. In any case, this application for interim injunction defeated the definition provided for in Order 40 Rule 1 that only availed a remedy of injunction during the pendency of a suit and once Judgment has been delivered, the suit ceased to exist, making this application legally untenable. ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 13 of 60

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xi. On a balance of inconvenience, the balance tilted in his favour and supported dismissing this application. v. In response to the contents of Paragraphs 7 and 8 of the Supporting Affidavit, there was no proof availed before this court of any threat to dispose off the suit property to any third parties and as such. This remained as mere sensational, emotional, argumentative and unreasonable at best, incapable of sustain the order as sought. vi. In response to the averments made under Paragraph 10 of the Supporting Affidavit, he reiterated the replies made under Paragraph 4 above. vii. What was deponed hereinabove was true to the best of his knowledge, information and belief and where based on information sources whereof, he had disclosed and believe to be true. V. Submissions ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 14 of 60

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7. On 30th July, 2026, the Honourable Court directed the parties to dispose of the application by filing submissions. Despite of this, the Honourable Court could only access the written submissions by the 4th Plaintiff/Applicant. None of the other parties had had their submissions available from neither the Judiciary CTS Portal nor the ELC Registry by the time the Court proceeded to pen down its Ruling. 8. Nonetheless, the Honourable Court reserved 25 th September, 2026 as the date to deliver its Ruling on its own merit accordingly. A. The Written Submissions by the 4th Plaintiff/Applicant 9. The 4th Plaintiff/Applicant through the Law firm of Messrs. Siminyu & Oduor Company Advocates filed their written submissions dated 4th August, 2026. Mr. Siminyu Advocate commenced by providing a brief background of the matter. He informed the Court that what was before it was a post Judgment application. It was properly anchored on the inherent jurisdiction of the Court under the provision of Sections 3 and 3A of the Civil Procedure Act, Cap. 21, Article 162 (2)(b) of the Constitution, and Section 13 (3) and (7) of the Environment and ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 15 of 60

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Land Court Act, and not on Order 42 Rule 6 of the Civil Procedure Rules, given that no such prayer was pleaded. 10. The Learned Counsel placed reliance on the definition of "inherent jurisdiction" in Black's Law Dictionary, 11th Edition, as: “The power of a court to do all things reasonably necessary for the administration of justice within the scope of its jurisdiction. This power is not conferred by statute but arises from the very nature of the court as a court of justice. It includes the power to prevent abuse of process, to punish contempt, to control its own proceedings, and to make orders necessary to do justice.” 11. The Counsel further cited the decision of the Court of Appeal being “Kenya Power & Lighting Co. Limited – Versus - Benzene Holdings Limited t/a WYCO Paints, Civil Appeal No. 132 of 2014” , where the Court, citing Halsbury's Laws of England, 4 th Edition, Vol. 37, Paragraph 14, described the inherent jurisdiction of the court as “a virile and viable doctrine” and “a reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so” , including to ensure due process, prevent oppression, and secure a fair trial between the parties. ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 16 of 60

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12. Additionally, the Learned Counsel also cited the Supreme Court decision in the case of:- “ Gatirau Peter Munga – Versus - Dickson Mwenda Kithinji & 2 Others [2014] eKLR” , for the proposition that: “Conservatory orders ought to be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values and the proportionate magnitudes and priority levels attributable to the relevant causes.” 13. It was submitted, invoking the provision Article 159(2)(d) of the Constitution, that the Court ought not to allow procedural technicality to override substantive justice, and that the proper approach is to preserve the suit property so as to allow the Applicant to exhaust his right of appeal; failing which, a successful appeal would be rendered nugatory. On the Respondent's contention that no prima facie case had been established, the Counsel submitted that this was not the applicable test at this post-Judgment stage, the only relevant considerations being whether there was an arguable appeal and whether the suit property ought to be preserved pending its determination. On the question of security, the Counsel averred ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 17 of 60

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that the application was not brought under the provision Order 42 Rule 6, and that Section 3A of the Civil Procedure Act, Cap. 21 does not import a requirement for security as a pre condition to the exercise of the Court's inherent jurisdiction. B. The Written Submissions by the 3rd Defendant 14. As already indicate above, there was no written submissions placed on record on behalf of the Respondent. The Court has, in the circumstances, had regard to the Grounds of Opposition and the Replying Affidavit as constituting the Respondent's case in opposition. VI. Analysis and Determination 15. I have keenly considered the Notice of Motion application dated 15th July, 2026, the supporting affidavit, written submission, the cited authorities by the 4th Plaintiff/Applicant, the Grounds of Opposition, the Replying Affidavit by the 3rd Defendant/Respondent, the applicable relevant provision of the Constitution of Kenya, 2010 and the law. 16. For the Court to reach an informed, fair, Equitable and reasonable decision, it has condensed the subject matter into the following four ( 4 ) issues for its determination. These are:- ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 18 of 60

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a) Whether this Court, having rendered its final Judgment on 9 th July, 2026, retains jurisdiction to entertain the present postJudgment application; b) Whether the principles applicable to temporary injunctions under Order 40 of the Civil Procedure Rules, and to stay of execution under Order 42 Rule 6, govern the present application; c) Whether the Applicant has satisfied the threshold for the grant of conservatory orders and/or an injunction pending the hearing and determination of the intended appeal; and d) Who should bear the costs of the application ISSUE No. a). Whether this Court, having rendered its final Judgment on 9th July, 2026, retains jurisdiction to entertain the present post-Judgment application. 17. Under this Sub – heading, the Honourable Court will be examining the legal effect, import and connotation of its Judgement and the subsequent application made post – Judgement thereof. To begin with, its not in dispute that this Court delivered its final Judgment in the suit on 9 th July, 2026. Essentially, the Court dismissed the Plaintiffs’ suit in its entirety. Being dissatisfied with the said final decision, the 4 th Plaintiff lodged a Notice of Appeal at the Court of Appeal with the ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 19 of 60

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intention of preferring an appeal against it. Subsequently, the 4th Plaintiff has now formally moved this Court specifically seeking orders to preserve the suit property pending the hearing and determination of the intended appeal. Basically, that is the pith and substance of the application before the Court. 18. Upon service, the 3rd Defendant/Respondent in whose favour the Judgement was made, vigorously opposed the application. Particularly, it has anchored its opposition unto the prayer for a temporary injunction. Its main contention is that substantially the suit was conclusively determined upon delivery of the Judgment and hence seeking an injunctive order pursuant to the provision of Order 40 of the Civil Procedure Rules, 2010 cannot issue after the conclusion of the suit. In a nutshell, the Court has no legal capacity to grant such a relief in the given circumstances. 19. On the other hand, the Applicant while citing certain provision of the law, strongly maintains that the Court retains inherent and residual jurisdiction to make appropriate preservatory orders so as to protect the subject matter of the intended ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 20 of 60

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appeal. By all means, these are not light issues. They are weighty. Certainly, they are neither academic nor otiose to say the least. 20. It is trite law that jurisdiction is the foundation upon which the authority of a Court to entertain a dispute rests. Without jurisdiction, a Court must down its tools. This fundamental principle was emphatically stated in the celebrated decision of: “Owners of the Motor Vessel “Lillian S” – Versus - Caltex Oil (Kenya) Limited [1989] KLR 1”, where Nyarangi, JA held that:“Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 21. Equally important, is the distinction between a Court being “functus officio” in respect of the substantive merits of the dispute and the Court being completely divested of every residual authority concerning proceedings arising from its own Judgment. The “doctrine of functus officio” generally means that once a Court has performed its judicial function by rendering a ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 21 of 60

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final decision on the merits of a dispute, it cannot thereafter revisit the merits of that decision except in the limited circumstances provided by law, including review, correction of accidental errors and slips, clarification, or other legally recognised residual powers. 22. The Supreme Court of Kenya considered the doctrine in the case of:- “Raila Odinga & 2 Others – Versus - Independent Electoral and Boundaries Commission & 3 Others [2013] eKLR”, where it observed that the doctrine prevents a Court from revisiting a matter after it has rendered a final decision thereon, subject to limited exceptions. The rationale behind the doctrine is founded upon the need for finality in litigation and certainty in judicial proceedings. In other words, it is informed from the phrase – “Litigation must come to an end”. 23. Similarly, in the case of:- “Telkom Kenya Limited – Versus - John Ochanda (Suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Limited) [2014] eKLR” , the Court of Appeal explained the doctrine as follows:“Functus officio is an enduring principle of law that prevents the re-opening of a matter before a court that rendered the final decision thereon.” ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 22 of 60

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24. Therefore, once this Court delivered the Judgment on 9 th July, 2026, it became “functus officio” regarding the substantive merits of the Plaintiffs’ claim and could not, under the guise of a subsequent interlocutory application, re - open the issues already determined or effectively reverse, suspend or vary the legal conclusions reached in the Judgment otherwise than in accordance with the law. 25. Nevertheless, the doctrine does not mean that a trial Court becomes powerless to deal with every consequential or ancillary matter arising from its Judgment. I reiterate that Courts retain limited statutory and residual powers to address matters such as execution, stay of execution where authorised by law, review, correction of clerical or accidental errors, costs and other matters necessary to give effect to or protect the integrity of the judicial process. 26. In the instant case, the Learned Counsel for the Applicant has particularly submitted as follows:“….the application was properly anchored on the inherent jurisdiction of the Court under the provision of Sections 3 and 3A of the Civil Procedure Act, Cap. 21, Article 162 (2)(b) of the ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 23 of 60

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Constitution, and Section 13 (3) and (7) of the Environment and Land Court Act, and not on Order 42 Rule 6 of the Civil Procedure Rules, given that no such prayer was pleaded” . (Emphasis is Mine) Simply put, the Applicant categorically held that it was not seeking for reliefs under the conventional provision of Order 42 of the Civil Procedure Rules, 2010. Based on the provision of Order 2 Rule 6 (1) of the Civil Procedure Rules, 2010, parties are bound by their own pleadings. The provision of Section 3 of the Civil Procedure Act Cap. 21, reserves the jurisdiction of the Court to make orders necessary for the ends of justice where the Act so permits. More importantly, Section 3A provides:“Nothing in this Act shall limit or otherwise affect the inherent power of the court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court.” 27. The inherent jurisdiction of the Court is, therefore, not an independent appellate jurisdiction through which a Court may reconsider its own final decision merely because a dissatisfied litigant has expressed an intention to appeal. Nor can Section 3A be employed as a device for circumventing express ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 24 of 60

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statutory provisions or procedural rules. The inherent jurisdiction is residual in nature and is invoked where necessary to ensure that the judicial process is not rendered ineffective or abused. 28. In the case of:- “Kenya Power & Lighting Company Limited – Versus - Benzene Holdings Limited t/a WYCO Paints (Supra)”, as cited by the Applicant, the Court of Appeal recognised the inherent jurisdiction of the Court as a residual reservoir of judicial power. The Court referred to the description in Halsbury’s Laws of England, observing that inherent jurisdiction is:“a reserve or fund of powers, a residual source of powers, which the court may draw upon as necessary whenever it is just or equitable to do so.” 29. However, the exercise of such inherent jurisdiction must always be undertaken cautiously and consistently with the existing legal framework. It cannot be exercised where there is an express statutory provision directly governing the matter. The Court must not invoke its inherent jurisdiction to defeat or ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 25 of 60

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render otiose the carefully structured rules enacted by Parliament or promulgated under statutory authority. 30. In this respect, I am guided by the decision in the case of:“Stephen Boro Gitiha – Versus - Family Finance Building Society & 3 Others [2015] eKLR”, where the Court reiterated that the inherent powers of the Court are intended to supplement, rather than supplant, the provisions of the law. 31. The Environment and Land Court is a creature f the Constitution. It was established under the provision of Article 162(2)(b) of the Constitution and derives its jurisdiction from the Constitution and the Environment and Land Court Act, No. 19 of 2011. The provision of Section 13(7) of the Environment and Land Court Act provides that in exercise of its jurisdiction under the Act, the Court may make such orders and grant such reliefs as it deems fit and just, including preservation orders and such other relief as the Court may deem appropriate. 32. Further, the provision of Section 13(3) of the Environment and Land Court Act expressly recognises the Court’s power to determine matters concerning land and the environment, while Section 19 of the Act provides that the Court shall be guided by ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 26 of 60

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the principles of the Constitution and shall not be bound by procedural technicalities. 33. However, the existence of broad remedial powers under Section 13(7) does not mean that the Court may ignore the limits of its jurisdiction after delivering a final Judgment. Those powers must be exercised within a live controversy or in a matter properly falling within the Court’s residual jurisdiction. 34. In the instant case, and in all fairness, the Court is not being invited to reconsider whether the Applicant acquired the suit property through a claim of land adverse possession nor whether the 3rd Defendant is the absolute and legally registered owner thereof, nor whether the conclusions in the Judgment of 9th July, 2026 were correct or not. Those are substantive questions which now belong, subject to the appellate process, to the jurisdiction of the appellate Court. This Court cannot sit as an appellate court on its own decision. Far from it. 35. What the Applicant seeks is the preservation of the physical and proprietary substratum of the intended appeal so that, should the appellate process ultimately vindicate his claim, the appeal ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 27 of 60

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is not rendered nugatory, practically ineffective by irreversible dealings with the property in the meantime. 36. In my view, therefore, the mere delivery of a final Judgment does not automatically deprive this Court of all authority to entertain an application seeking a lawful ancillary order connected with the preservation of the subject matter pending appeal. However, the Court’s jurisdiction at this stage is narrow and must be exercised without revisiting the merits of the dispute or undermining the finality of its Judgment. 37. The Court must consequently distinguish between: a) an impermissible attempt to reopen or reverse the Judgment through the backdoor of an interlocutory application; and b) a legitimate application seeking a limited preservatory order to prevent the subject matter of a properly initiated appellate process from being irreversibly destroyed, alienated or fundamentally altered. 38. The former would clearly offend “ the doctrine of functus officio”. The latter, depending on the applicable legal framework and ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 28 of 60

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circumstances of the case, may fall within the Court’s residual jurisdiction or the powers expressly conferred by law. 39. The Court further takes cognisance of the fact that the Applicant has annexed evidence indicating that a Notice of Appeal was lodged and that proceedings were requested. The filing of a Notice of Appeal does not, of itself, operate as a stay of execution or deprive a successful litigant of the fruits of a Judgment. Nevertheless, it constitutes a material step towards invocation of the appellate jurisdiction and may, where circumstances warrant, provide the factual context within which a preservatory application is considered. 40. Accordingly, I find and hold that this Court retains a limited residual jurisdiction after delivery of its Judgment to entertain an appropriate application concerning preservation of the subject matter of an intended appeal. That jurisdiction, however, is not unlimited and must be exercised within the applicable statutory and procedural framework. The Applicant must therefore satisfy the substantive legal threshold governing the particular relief sought. ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 29 of 60

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41. Therefore, the issue under this sub – heading is consequently answered in the affirmative, but with the qualification that the Court’s post-Judgment jurisdiction is residual, limited and cannot be employed to re - open the merits of the Judgment or circumvent express provisions of the law. ISSUE No. b). Whether the principles applicable to temporary injunctions under Order 40 of the Civil Procedure Rules, and to stay of execution under Order 42 Rule 6, govern the present application; 42. As already indicated, the Applicant’s principal argument is that because the application has been expressly founded upon the provision of Sections 3 and 3A of the Civil Procedure Act, Cap. 21, Article 159 of the Constitution and the inherent jurisdiction of the Court, neither Order 40 nor Order 42 Rule 6 of the Civil Procedure Rules, 2010 is applicable. 43. With tremendous respect, I do not agree with the proposition that the legal character of a remedy is determined solely by ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 30 of 60

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the provisions cited by an Applicant. A Court of law must always be proactive by looking beyond the nomenclature given to an application and consider the substance, nature and practical effect of the orders sought. That is the essence of being a legal for a. 44. The Court of Appeal has repeatedly emphasised that a Court is concerned with the substance of proceedings rather than merely their form. A litigant cannot obtain a relief otherwise unavailable under the law merely by assigning it a different name or by invoking broad constitutional and inherent powers. 45. The Applicant’s prayer No. (iii) expressly seeks: “a conservatory order restraining the 3rd Defendant/Respondent through its employees, servants and/or agents from alienating, transferring, leasing, sub-dividing, selling, constructing or proceeding with construction on Plot No. KWALE/DIANI BEACH BLOCK/103 pending the hearing and determination of the intended appeal.” 46. Prayer No. (iv) similarly seeks an order preserving the suit property pending the hearing and determination of the intended appeal. ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 31 of 60

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47. The 3rd Respondent argues that the relief is, in substance, an injunction and/or a stay of execution and that the Applicant must therefore satisfy the relevant principles under Order 40 or Order 42 Rule 6. 48. I agree with the Respondent to the extent that the Court must examine the substance of the relief. The Applicant cannot evade an applicable legal threshold simply by invoking the provision of Section 3A of the Civil Procedure Act, Cap. 21 or by describing the order sought as a “conservatory order.” 49. A conservatory order is conceptually distinct from an ordinary private-law interlocutory injunction. In the case of:- “Gatirau Peter Munya – Versus - Dickson Mwenda Kithinji & 2 Others [2014] eKLR”, the Supreme Court explained that conservatory orders bear a more public-law connotation and are granted on the inherent merits of the case, taking into account constitutional values, public interest and the proportionate magnitudes and priority levels attributable to the relevant causes. 50. The Supreme Court stated:- ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 32 of 60

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“Conservatory orders, consequently, should be granted on the inherent merit of a case, bearing in mind the public interest, the constitutional values, and the proportionate magnitudes and priority levels attributable to the relevant causes.” 51. Conservatory orders are therefore not ordinarily granted merely because a private litigant fears that a successful appeal may be rendered nugatory. Their principle function is generally to preserve constitutional rights, the public interest or the subject matter of a constitutional controversy pending the final determination of proceedings. 52. Clearly, the present dispute is not before the Court as a Constitutional Petition. It is a private land dispute between identified parties concerning proprietary interests in a specific parcel of land. In simple terms, without appearing to be scatting through, beating about the bush or going round and round in circles, the Applicant’s main concern is principally that the 3rd Defendant may continue construction or undertake dealings which could alter the property or place it beyond the practical reach of a successful appeal. ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 33 of 60

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53. The Court must therefore be careful not to apply the label “conservatory order” merely because that nomenclature appears in the application. The nature of the dispute and the relief sought are substantially private-law in character. 54. Similarly, the Applicant’s prayer for a temporary injunction pending appeal raises a distinct question. The provision of Order 40 Rule 1 of the Civil Procedure Rules, 2010 empowers the Court, in specified circumstances, to grant a temporary injunction where property in dispute is in danger of being wasted, damaged, alienated, wrongfully sold or otherwise dealt with in a manner capable of causing injury to the Applicant. 55. The classical test for a temporary injunction was set out in the case of “Giella = Versus - Cassman Brown & Company Limited [1973] EA 358, namely that an Applicant must demonstrate:a) a prima facie case with a probability of success; b) that he stands to suffer irreparable injury which would not adequately be compensated by an award of damages; and c) where the Court is in doubt, the application shall be determined on a balance of convenience. ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 34 of 60

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56. These principles were further expounded in the case :“Nguruman Limited – Versus - Jan Bonde Nielsen & 2 Others [2014] eKLR”, where the Court of Appeal emphasized that the three requirements are sequential and that the establishment of a prima facie case is the first gateway through which an Applicant must pass. 57. However, the present application presents an important difficulty. In the Republic of Kenya, the legal system in our Courts is that of adversarial justice as opposed to inquisitorial one. The Court has already rendered a final Judgment and conclusively determined the competing proprietary claims at the trial level. In the Judgment, the Applicant’s claim was dismissed and the 3rd Defendant emerged as the successful party. 58. It would be legally artificial, invalid and not rightful for this Court, having already pronounced itself upon the substantive dispute, to proceed under the ordinary “ Giella – Versus Cassman Brown” test as though the suit remained pending and to determine afresh whether the Applicant has demonstrated a ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 35 of 60

page 35 of 60

prima facie case with a probability of success before the same Court. 59. Indeed, the Respondent’s argument that the Applicant has not demonstrated a prima facie case is understandable within the conventional Order 40 framework. However, applying that test rigidly at this post-Judgment stage would necessarily require this Court to revisit or reconsider the very findings contained in its Judgment. That would conflict with “the doctrine of functus officio”. 60. I therefore find that the ordinary pre-Judgment interlocutory injunction test under Giella cannot, without qualification, be transplanted into a post-Judgment application seeking preservation pending an intended appeal. 61. Furthermore, the Applicant has also not expressly sought a stay of execution under the provision of Order 42 Rule 6 of the Civil Procedure Rules, 2010. I can easily hazzard a guess why as shall be deliberated on here below. The provision of Order 42 Rule 6(1) provides that an appeal shall not operate as a stay of execution or proceedings under a decree or order appealed from except where the Court orders otherwise. ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 36 of 60

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Under Rule 6(2), the Court may grant a stay of execution if it is satisfied that: a) substantial loss may result to the Applicant unless the order is made; b) the application has been made without unreasonable delay; and c) such security as the Court orders for the due performance of the decree or order has been given. 62. The purpose of an order of stay of execution is to suspend the enforcement or implementation of a decree or order pending appeal. The central concern is to preserve the subject matter of the litigation while balancing the right of the successful party to enjoy the fruits of the Judgment against the right of the unsuccessful party to pursue an appeal. 63. In the initial stages of building jurisprudence over this subject matter, the Court of Appeal in the famous case of:- “ Butt – Versus - Rent Restriction Tribunal [1982] KLR 417”, held, inter alia, that: “The power of the court to grant or refuse an application for a stay of execution is discretionary and the discretion ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 37 of 60

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should be exercised in such a way as not to prevent an appeal.” 64. The Court further stated that the general principle is that where there is no overwhelming hindrance, a stay should be granted so that an appeal may not be rendered nugatory, while recognising that the successful party is ordinarily entitled to the fruits of his Judgment. 65. As promised above, the Applicant may have had a genuine reason for not invoking the provision of Order 42 of the Civil Procedure Rule, 2010. From the face value, the present application does not neatly fit within the conventional framework of a stay of execution. The Judgment principally dismissed the Plaintiffs’ suit. The Applicant has not demonstrated that there is a positive executable decree directing him to surrender possession, vacate the property or perform any affirmative obligation which requires suspension. In other words, it was a negative order. 66. A negative order, being an order that merely dismisses a suit or application, is ordinarily incapable of being stayed because there is nothing to execute. This principle was discussed in ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 38 of 60

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“Western College of Arts and Applied Sciences – Versus - Oranga & Others [1976] KLR 63” , where the Court held that an order dismissing a suit was incapable of execution and therefore incapable of being stayed. 67. Therefore, if the Applicant were seeking a conventional stay of execution of the dismissal of his suit, the prayer would face the fundamental difficulty that there may be no positive act of execution capable of suspension. 68. Be that as it may, the Applicant’s complaint is different. He fears that the 3rd Defendant, having succeeded at trial and having been recognised by the Judgment as the lawful proprietor, may alienate, transfer, lease, sub - divide or substantially alter the suit property by construction before the intended appeal is heard. Of course, the 3 rd Respondent expressly refutes this allegation and strongly holds that the suit property is his retirement home. He has put the fight for over twenty ( 20 ) years with the Applicant purely to preserve it for this purpose. That is his view – point and which the court must respect. ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 39 of 60

page 39 of 60

69. However, in my view, the Applicant’s concern cannot simply be dismissed because he failed to cite the provision of Order 42 Rule 6 or because the Judgment resulted in the dismissal of the suit. The question is whether, in the peculiar circumstances of a land dispute where the subject matter is immovable property and where the Applicant has initiated the appellate process, a limited preservation order may be fashioned without converting the application into a review of the Judgment or depriving the successful litigant of the essential fruits thereof. 70. Nevertheless, the Applicant’s reliance on the provision of Section 3A cannot be accepted as meaning that all the safeguards and principles governing post-Judgment relief are inapplicable. The Court must remain alive to the principles underlying the provision of Order 42 Rule 6, particularly substantial loss, absence of unreasonable delay, preservation of the subject matter and the balancing of the rights of the successful and unsuccessful litigants. 71. The Applicant’s submission that no security can be ordered because the application is not brought under Order 42 Rule 6 ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 40 of 60

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is equally too broad. The power to impose terms is inherent in the Court’s equitable and discretionary jurisdiction. Where preservation of the subject matter would cause demonstrable prejudice to the successful party, the Court may, depending on the circumstances, impose reasonable conditions designed to balance the competing interests. 72. However, security is not an automatic or punitive requirement in every application for preservation of immovable property. The nature of the property, the character of the threatened prejudice, the evidence of loss and the proportionality of the amount sought must all be considered. 73. Accordingly, I find that neither the Giella principles under Order 40 nor Order 42 Rule 6 may be applied mechanically to the present application. The application is not a conventional pre-Judgment injunction application, nor is it a straightforward application for stay of execution of a positive decree. 74. Nonetheless, the principles underlying those provisions remain relevant by analogy, particularly the requirements that the Applicant demonstrate a real risk of prejudice, that the application be brought without undue delay, that the Court ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 41 of 60

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preserve the effectiveness of the appellate process where appropriate, and that the successful party’s right to enjoy the fruits of the Judgment be given due and proportionate protection. 75. The second issue is therefore answered by holding that the present application must be determined according to its substance as a post-Judgment application for preservation of the subject matter pending appeal, drawing guidance from the Court’s residual jurisdiction, the principles applicable to stay pending appeal and the equitable principles governing preservation of property, rather than mechanically applying either the Giella test or the test for conservatory orders in a Constitutional Petition. ISSUE No. C: Whether the Applicant has satisfied the threshold for the grant of conservatory orders and/or an injunction pending the hearing and determination of the intended appeal; 76. Having found that this Court possesses limited residual jurisdiction to consider an application for preservation of the subject matter pending appeal, the central question becomes ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 42 of 60

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whether the Applicant has established sufficient grounds for the exercise of that discretion. 77. The Court must approach this issue by balancing two competing and equally important principles. The first is the right of an unsuccessful litigant to pursue an appeal and, where appropriate, to have the subject matter preserved so that the appellate process does not become an exercise in futility. 78. The second is the equally important right of a successful litigant to enjoy the fruits of a Judgment regularly obtained. A successful party should not be unnecessarily deprived of the benefits of a Judgment merely because the unsuccessful party has lodged or intends to lodge an appeal. 79. In “Butt – Versus - Rent Restriction Tribunal (Supra)”, the Court recognised the need to exercise the discretion regarding preservation pending appeal in a manner that does not render the appellate process nugatory while simultaneously recognising the rights of the successful litigant. 80. The Applicant has demonstrated that Judgment was delivered on 9th July, 2026 and that he lodged the present application on ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 43 of 60

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15th July, 2026. The application was therefore filed approximately six ( 6 ) days after delivery of the Judgment. 81. I find that there was no unreasonable or inordinate delay in bringing the application. This consideration weighs in favour of the Applicant. 82. The Applicant has also demonstrated that a Notice of Appeal was lodged and served upon the Respondents. The Notice of Appeal is the jurisdictional instrument through which an intended appeal to the Court of Appeal is initiated. Although the Court cannot at this stage determine the merits of the proposed appeal, the existence of a timely Notice of Appeal is a relevant consideration in determining whether there is a genuine and existing appellate process requiring preservation of the subject matter. 83. The Court is, however, not persuaded that the mere filing of a Notice of Appeal automatically entitles an Applicant to an injunction or preservation order. There must be a demonstrable basis for apprehending that, absent intervention by the Court, the subject matter may be placed beyond the ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 44 of 60

page 44 of 60

effective reach of the appellate process or materially altered in a manner causing irreversible prejudice. 84. The Applicant’s case is that unless restrained, the 3 rd Defendant may continue construction and/or dispose of the suit property. The Applicant fears that the property may be sold or transferred to third parties, thereby rendering the intended appeal nugatory. 85. The Respondent’s answer is equally clear. It denies any intention to alienate, transfer, sub - divide or dispose of the property. The deponent states that he has defended the suit for approximately twenty (20) years, has been declared the legal, equitable, beneficial and registered owner, and is constructing his intended retirement home on the property. 86. The Respondent further points out that construction had previously been affected by a status quo order issued by this Court on 6th February, 2024, which he states having dutifully obeyed. He now argues that a further blanket restraint on construction would cause serious financial and infrastructural prejudice because substantial investments have already been made. I cannot agree with him more. ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 45 of 60

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87. Importantly, the Applicant has not placed before this Court specific empirical evidence of an imminent sale, transfer, sub division, lease or other intended alienation. There is no exhibited sale agreement, advertisement, communication with prospective purchasers, transfer instrument or other objective evidence demonstrating that the Respondent is actively taking steps to dispose of the suit property. 88. An injunction or preservatory order cannot be issued merely on the basis of speculation, apprehension or a general possibility that a registered proprietor may one day dispose of property. The jurisdiction of the Court must be exercised on the basis of demonstrated facts and a real risk of prejudice. 89. However, the absence of evidence of an imminent sale does not completely dispose of the matter. The Applicant has also complained of continued construction. Unlike an anticipated sale, the Respondent expressly admits that construction of his intended retirement home is ongoing and that he wishes to complete it. 90. The continuation of substantial construction on land whose ownership remains the subject of an intended appeal raises a ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 46 of 60

page 46 of 60

different concern. While land is immovable, significant construction may materially alter the physical character and value of the property, complicate restoration and create additional factual and legal consequences in the event that the appellate Court reaches a conclusion different from that reached by this Court. 91. At the same time, the Court must not overlook the fact that the 3rd Respondent is the successful party before this Court and is, as matters presently stand, the lawful and absolute registered proprietor with all indefeasible rights, tile and rights over it vested in him by law. The Judgment of this Court remains valid and enforceable unless and until it is set aside, varied, reviewed or overturned by a competent appellate Court. 92. The Court cannot therefore issue an order whose practical effect would be to treat the Applicant as having succeeded in the suit notwithstanding the Judgment or to completely deprive the 3rd Respondent of the enjoyment of proprietary rights without a compelling legal basis. ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 47 of 60

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93. The provision of Article 40 of the Constitution protects the right to acquire and own property. The protection extends to a person whose proprietary rights have been judicially recognised in a valid and subsisting Judgment. Nevertheless, property rights, like other rights, may be subjected to lawful and proportionate judicial orders where necessary for the administration of justice. 94. The question is consequently not whether the Respondent has a right to enjoy the property. He undoubtedly does so under the presently subsisting Judgment. The question is whether unrestricted construction or alienation pending appeal may create a situation in which the appellate Court’s eventual decision becomes incapable of effective implementation. 95. In resolving that question, the Court must apply the principle of proportionality. A blanket prohibition against every form of enjoyment of the property would disproportionately prejudice the successful party. Conversely, allowing unrestricted alienation to third parties could potentially complicate the appellate process and introduce innocent purchasers or thirdparty interests into an already protracted dispute. ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 48 of 60

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96. The Court therefore finds that the interests of justice do not favour either extreme. 97. On one hand, the Applicant has not established a sufficient factual basis to justify a blanket injunction stopping all construction or preventing the 3 rd Respondent from exercising every proprietary right over the land pending appeal. 98. On the other hand, the Court considers that the possibility of transfer, sale, charge or other dealings capable of introducing third-party interests into the property during the pendency of an intended appeal is a matter that may reasonably justify a limited preservation order. 99. Such an order would not determine the merits of the appeal. Neither would it reopen the Judgment. It would merely preserve the proprietary identity of the subject matter by preventing dealings that may fundamentally complicate the implementation of any eventual appellate decree. 100. The Court must also consider whether damages would be an adequate remedy. The 3rd Respondent argues that any prejudice to the Applicant can be compensated through ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 49 of 60

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damages or post-Judgment directions should the appeal succeed. 101. While damages may in certain circumstances compensate for loss arising from developments or dealings with property, land disputes frequently involve interests that are not readily reducible to a monetary award. Moreover, once property passes into the hands of third parties or becomes subject to additional encumbrances, the restoration of the parties to their original positions may become considerably more complex. 102. Conversely, where construction is undertaken by a party who presently enjoys the benefit of a valid Judgment, the mere fact that the appellate process is pending cannot automatically require that all construction cease indefinitely, particularly where substantial investment has already been made and where the Applicant has not demonstrated a concrete and imminent risk of irreparable prejudice arising from the construction itself. 103. I have also considered the Respondent’s request that, should the Court grant preservatory orders, the Applicant be required to deposit security of a sum of Kenya Shillings Ten Million ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 50 of 60

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(Kshs.10,000,000/=) either in the Judiciary account or in a joint interest-earning Escrow account in the names of the advocates. 104. The 3rd Respondent’s request is premised on alleged continuing losses and financial prejudice resulting from further delay in completion of the retirement home. However, apart from the general assertion that substantial investments have been made, no valuation report, bill of quantities, documentary evidence of quantified losses, financing costs or other material has been placed before the Court to demonstrate how the figure of a sum of Kenya Shillings Ten Million (Kshs.10,000,000/=) was arrived at. 105. Security must not be imposed arbitrarily. A requirement for security must bear a rational and proportionate relationship to the potential prejudice sought to be protected. The Court cannot select or impose a substantial figure merely because one party has proposed it. 106. More fundamentally, the preservation order which the Court considers appropriate does not require the Respondent to surrender the property, vacate it or cease all activity thereon. ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 51 of 60

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The prejudice asserted by the Respondent would therefore be substantially reduced by the nature of the limited order to be issued. 107. In the circumstances, I decline the request to order the Applicant to deposit of a sum of Kenya Shillings Ten Million (Kshs. 10, 000, 000.00) and instead have it reasonably reduced to a sum of Kenya Shillings Five Million (Kshs.5,000,000/=) as security for the due performance of the Decree. 108. The Court is mindful that the dispute has, according to the Respondent, been in litigation for approximately twenty ( 20) years. That history is relevant because the Court must avoid making an open-ended preservatory order that may indefinitely prevent the successful party from enjoying the fruits of the Judgment. 109. Any order issued must therefore be limited in duration and must remain connected to the diligent prosecution of the intended appeal. 110. The Applicant has a corresponding duty to take the necessary steps to obtain the proceedings, file the Record of Appeal and ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 52 of 60

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prosecute the appeal expeditiously. The Court will not permit its jurisdiction to be invoked to preserve property indefinitely where an Applicant subsequently fails to pursue the appellate process with diligence. 111. Taking into account the totality of the circumstances, I am persuaded that the justice of the case lies in granting a limited preservatory order against alienation or creation of third-party interests, while declining to issue a blanket order restraining the 3rd Respondent from all construction or use of the suit property. 112. This approach preserves the essential substratum of the intended appeal without unduly interfering with the Respondent’s rights under the presently subsisting Judgment. 113. Consequently, and based on “the Doctrine of Lis Pendens”, I find that the Applicant has established sufficient grounds for a limited order restraining the 3rd Defendant/Respondent from selling, transferring, charging, leasing, sub - dividing or otherwise voluntarily alienating or creating third-party proprietary interests over the suit property pending the filing ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 53 of 60

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and determination of the intended appeal or until further orders of the appellate Court. 114. However, the Applicant has not demonstrated sufficient grounds for an order restraining the 3rd Defendant/Respondent from continuing with construction generally. The prayer for a blanket injunction against construction is accordingly declined. 115. I further direct that the preservation order herein shall not operate as an order determining or prejudicing the merits of the intended appeal. It is purely preservatory and shall remain subject to any orders that may subsequently be issued by the Court of Appeal. ISSUE No. d). 116. Who should bear the costs of the application It is now well established that the issue of cost is at the discretion of the Court. Costs mean the award that party is granted at the conclusion of legal action or proceeding in any litigation. The Black Law Dictionary defines cost to means:“the expenses of litigation, prosecution or other legal transaction especially those allowed in favour of one party against the other” ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 54 of 60

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117. This principle is codified under the provision of Section 27(1) of the Civil Procedure Act, Cap. 21, of the Laws of Kenya which provides: “Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.” 118. Additionally, the provision provides for ‘costs of and incidental to all suit or application’ which expression includes not only costs of suit but also costs of application in suit as described by Mulla (supra) at 536. Furthermore, Rtd. Justice Richard Kuloba in his book Judicial Hints on Civil Procedure, 2nd Edition, 2005 at 95 notes that the words ‘the event’ means the result of all the proceedings incidental to the litigation. Accordingly, the event means the result of the ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 55 of 60

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entire litigation. The order as to costs as provided for under Section 27 remains at the discretion of the court. 119. The award of costs is therefore not cast in stone but courts have ultimate discretion. In exercising this discretion, courts must not only look at the outcome of the suit but also the circumstances of each case. In “Morgan Air Cargo Limited – Versus - Evrest Enterprises Limited [2014] eKLR” the court noted that; “The exercise of the discretion, however, depends on the circumstances of each case. Therefore, the law in designing the legal phrase that ‘’Cost follow the event’’ was driven by the fact that there could be no ‘’one-size-fit-all’’ situation on the matter. That is why section 27(1) of the Civil Procedure Act is couched the way it appears in the statute; and even all literally works and judicial decisions on costs have recognized this fact and were guided by and decided on the facts of the case respectively. Needless to state, circumstances differ from case to case.” 120. In the present application, the parties have attained a partial success. On the one hand, although the Applicant has not succeeded in obtaining the full relief sought but has taken home something. The application sought, inter alia, a blanket temporary injunction restraining alienation, transfer, ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 56 of 60

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leasing, subdivision, sale and construction. The Court has declined the order restraining construction and has granted only a limited preservation order concerning alienation and the creation of third-party proprietary interests. 121. On the other hand, the 3rd Respondent, in the spirit of not depriving him from enjoying the fruits of the Judgement, has successfully resisted the broader relief but has not succeeded in obtaining the dismissal of the application in its entirety. 122. In the circumstances, neither party can properly be regarded as having wholly succeeded. Moreover, the limited order issued is intended principally to preserve the subject matter pending appeal and is not a determination of the substantive rights of either party. Taking all these factors into consideration, and in order to avoid further escalation of costs in a dispute that has already been prolonged, I find that the most just order is that each party shall bear its own costs of the application. V. Conclusion and Disposition ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 57 of 60

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123. Ultimately, having conducted an in-depth analysis of the framed issues herein, the Honourable Court based on the principle of Preponderance of Probabilities and the balance of convenience, proceeds to make the following specific orders. These are:a) THAT the Honourable Court is clothed with the Jurisdiction to hear and determine the Notice of Motion application dated 15th July, 2026 post the delivery of its Judgement on 9th July, 2026. b) THAT the Notice of Motion application dated 15 th July, 2026 be and is hereby partly allowed in the following terms:c) THAT pending the filing and determination of the intended appeal, or until further orders of the Court of Appeal, and based on “the Doctrine of Lis Pendens” the 3rd Defendant/Respondent, whether by himself, his servants, employees, agents or any person acting under his authority, is hereby restrained from selling, transferring, charging, leasing, sub - dividing or otherwise voluntarily alienating or creating third-party proprietary interests over all that parcel of land known ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 58 of 60

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as Land Reference Numbers KWALE/DIANI BEACH BLOCK/103. d) THAT the prayer seeking to restrain the 3 rd Defendant/Respondent from constructing or proceeding with construction on the suit property be and is hereby declined. e) THAT the 4th Plaintiff/Applicant shall diligently and expeditiously pursue the intended appeal, and the preservatory order herein shall remain subject to any orders that may be issued by the Court of Appeal. f) THAT for the due performance of the Decree arising from the delivered Judgement by this Court, the 4 th Plaintiff/Applicant be and is hereby directed to deposit security of a sum of Kenya Shillings Five Million (Kshs. 5,000,000/=) in a joint Escrow bank account at a reputable Commercial institution WITHIN THE NEXT THIRTY (30) DAYS from the date of this ruling to be held in the names of the two ( 2 ) Law firms - Messers. Oduor, Siminyu & Company Advocates and Balala & Abed & Company Advocates of pending the hearing and final determination of the appeal. g) THAT in default of these Pre – Conditions the Notice of Motion application AUTOMATICALLY dated STAND 15th dismissed July, 2026 thereof shall without reverting back to this Honourable Court. ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 59 of 60

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h) THAT each party shall bear its own costs of the application. IT IS SO ORDERED ACCORDINGLY. RULING DELIVERED THROUGH MICRO – SOFT TEAMS VIRTUAL MEANS SIGNED AND DATED AT KWALE THIS…… 23RD …….DAY OF ……… SEPTEMBER…..……..2026. ………………………………. HON. JUSTICE L. L. NAIKUNI, ENVIRONMENT AND LAND COURT AT KWALE Ruling delivered in the presence of:a) Mr. Daniel Disii, the Court Assistant. b) Mr. Siminyu Advocate for the 4th Plaintiff/Applicant. c) M/s. Jullu Advocate for the 3rd Defendant/Respondent. d) No appearance for the 1st, 2nd & 3rd Plaintiffs/Applicants. e) No appearance for the 1st, 2nd 4th & 5th Defendants. ELCC 247 of 2021 HON. JUSTICE L.L NAIKUINI Page 60 of 60

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