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

RULING I. Introduction 1. What is before the Honourable Court for its determination is the Notice of Motion application dated 31st July, 2025. It was instituted by James King’ori Mwaura, Samuel Mwangi Mwaura, Wilson Githae Mwaura, Simon Mwaura Mbugua, Jacob Kinuthia Mwaura And Beatrice Wangui Mwaura the 1st , 2nd, 3rd, 4th, 5th & 6th Applicants herein. 2. The application was based on the provisions of Sections 1A, 1B, 3 & 3A of the Civil Procedure Act, Order 40 Rule 10(1), of the Civil Procedure Rules, 2010, Section 13(5)(a) of the Environment and Land Act, No. 19 of 2011 and all enabling provisions of the law. 3. Upon service, the application was opposed through filing of a Replying Afidavit sworn by Zaverio Kioko Mutua a director of the Respondent and dated 7th November 2025. Its contents will be expounded on later in this ruling. II. The case by the 1st, 2nd, 3rd, 4th, 5th & 6th Applicants 4. 5. The Applicants sought for the following orders:a. Spent. b. That pending the hearing and determination of this suit, this Honourable Court do grant orders of maintaining status quo and or preserving all those parcels of land registered as Kwale/ Diani S.S/5336 & Kwale/Diani S.S/5337 pending the hearing and determination of this suit. c. That the costs of this Application be in cause. The application was premised on the grounds, testimonial facts and the averments made out under a 10 Paragraphed Supporting Afidavit sworn by Jacob Kinuthia Mwaura, the 5th Applicant herein who swore the afidavit on his own behalf and on behalf of all the other Applicants in support of the prayers sought therein. The deponent averred as follows that:a. The Applicants had filed the suit herein contemporaneously with this Application, claiming to be vested with all those parcels of land registered as Land Reference Numbers Kwale/ Diani S.S/5336 & Kwale/Diani S.S/5337 (Hereinafter referred to as “The Suit Land”). b. The suit land belonged to their late parents the Late Peter Mwaura and Mary Njambi Mwaura, who had been residing on them since the years 1970s. c. They were settled there by the Government of Kenya following their relocation from Tanzania, even prior to the demarcation and registration of the said properties. d. During the adjudication and demarcation of the entire Diani Settlement Scheme, they were expecting that they would be allocated the suit property. e. They were shocked to learn the land was demarcated and registered as LR No. Kwale/ Diani/453 and it was allocated to Rebecca Nthure Gitonga and later on transferred to the Respondent herein on 7th July 2021. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2750/eng@2026-04-24 2

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f. Later on, the Respondent sub - divided the property into several portions and they were registered as LR No. Kwale/ Diani/789 to 798 which were later consolidated on 6th January 2022 and registered as Kwale/ Diani/5002. g. Further that the subject properties were initially registered as LR No. Kwale/Diani/453, which was later sub - divided into several portions, which were registered as Kwale/Diani/789 to 798. h. On or around September 2022, these two parcels were all consolidated to Kwale/Diani S.S/5002. on or around 17th October 2022, the parcels were once more sub - divided into two portions, which were registered as Kwale/ Diani S.S/5336 & Kwale/Diani S.S/5337. i. There was a high likelihood of further sub - division and/or consolidation of the subject property during the pendency of this suit if the orders sought were not granted, thus ofiending “the doctrine of lis pendens”. j. All the Applicants herein were born and brought up on the suit properties and were aged between the ages of 61 years and 44 years. k. Currently, they were living therein with their wives, husband, and their children. l. They had extensively developed the suit properties by putting up their residential houses, rental houses, business premises, the Applicants herein and have been living on the suit properties continuously for over 40 years, occupying, farming, and rearing of domestic animals without any interruption from the Respondent and or any person, agent, and or employee acting on instructions of the Respondent. m. The Applicants may be unable to realise the fruits of their Judgment should it be entered in their favour, since the subject matter would no longer be in existence. n. To avoid multiple suits involving third parties, it would be in the interest of Justice if the Application was allowed since no prejudice would be occasioned to the Respondent if the orders herein were granted. o. The application had been filed without delay. III. The responses by the Respondents. 6. As already indicated, the application was opposed through filing of a 10 Paragraphed Replying Afidavit sworn by the Respondents director one Zaverio Kioko Mutua. He averred as follows that:a. He had been authorised by his co-director Luke Mwiti Kinoto to swear the afidavit on his behalf as well. b. The application and the Originating Summons instituting the suit were based on falsehoods and were geared towards seeking the sympathy of the court as they lacked substance. c. The suit properties - Kwale/ Diani/ 789-798 being sub divisions of Kwale/Diani/453 were purchased by the Respondent company on 6th May 2022. The company then took possession of the properties. d. The Respondent stated that the allegation that the land had been given the applicants by the government as resettlement from Tanzania was false. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2750/eng@2026-04-24 3

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e. That the land was allocated to one Rebecca Nthure Gitonga and the alleged constructions on the suit property were recent so as to enable the applicants occupy land that did not rightfully belong to them. f. The Applicants had agreed on vacating the land sometime in 2024 but changed mind and have filed the instant suit. That the borehole on the property was not dug by the Applicants. g. Efiorts to develop the land have proved futile due to interference from the Applicants. h. The court was urged to dismiss the application for failure to prove a prima facie case. IV. Submissions 7. On 10th November 2025, while in the presence of all the parties were directed parties to canvass the application by way of written submissions. 8. Pursuant to that, all parties complied. Subsequently, the Honourable Court reserved the delivery of the Ruling on 9th February, 2026. However, it was eventually delivered on 24th April, 2026 accordingly. A. The Written Submissions by the 1st, 2nd, 3rd, 4th, 5th & 6th, Applicants 9. Through the law firm of Messrs. Mungai Kamau & Co Advocates filed their Written Submissions dated 16th December 2025. Mr. Mungai Kamau Advocate commenced his submissions by providing the Court with a brief background of the matter. The Learned Counsel further held that Court had inherent powers to issue any orders that it may deem fit in the administration of justice and furtherance of the Oxygen Principle. In the adjudication of the matter on the subject issue, the Honourable Court was urged to adopt “the Doctrine of Lis Pendens” and order that there shall neither be a transfer nor sub - division of the suit properties pending the hearing and determination of the suit. 10. The Learned Counsel defined the doctrine of lis pendens as a common law doctrine that was earlier provided for under the provision of Section 52 of the repealed Indian Transfer of Property Act 1882. He averred that the doctrine had been adopted by the Courts and forms part of the laws by virtue of the provision of Section 3(1) of the Judicature Act, Cap. 8 and Section 107(1) of the Land Registration Act, No. 3 of 2012. 11. It was submitted that the suit property may cease to exist if the status quo is not maintained pending the hearing and determination of the suit. That the Applicants were not proprietors of the suit properties; rather, the Respondent, who may undertake to transfer, sub - divide and or charge the suit properties if the status quo of the suit property was not maintained. 12. The Applicants submitted that an order directing that the status quo be maintained shall prevent any possible sub - divisions and transfers from being done on the suit properties and save this court’s precious judicial time by averting possible suits against third parties. That this Honourable Court had a duty of ensuring that the status quo was maintained without prejudice to either of the parties. 13. The Applicants had adequately proven that they would be irreparably prejudiced if the status quo was maintained, whereas the Respondent had failed to prove that he shall be prejudiced if the status quo of the suit properties was maintained. 14. Finally, the Honourable Court was asked to allow the application as prayed. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2750/eng@2026-04-24 4

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B. The Written Submissions by the Respondents. 15. While opposing the application, through the Law firm of Merrs. Kiogora Ariithi & Associates Advocates filed their Written Submissions on behalf of the Respondents dated 18th December 2025. 16. M/s. Bett Advocate very briefiy submitted mainly on the issue of temporary injunctions. Primarily, she averred that the Applicants had failed to meet the threshold for grant of injunctive orders as stipulated in the cases of” “East African Industries – Versus - Trufoods [1972] EA 420; Giella – Versus - Cassman Brown & Co. Limited [1973] EA 358 and “Nguruman Limited – Versus - Jan Bonde Nielsen & 2 Others [2014] eKLR”. The court was asked to find that the applicants had not made a case worthy of granting the orders sought. 17. Thus, the Learned Counsel urged the Honourable Court to dismiss the application with costs. C. Analysis and determination 18. I have carefully read and considered the pleadings herein lodged before Court by the Applicants and Respondent, the written submissions, cited authorities, the relevant provisions of the Constitution of Kenya, 2010 and statutes. 19. In order to arrive at an informed, just, equitable and reasonable decision, the Honorable Court has framed the following three ( 3 ) issues for its determination. These are: a. Whether the Notice of Motion application dated 31st July 2025 has merit. b. Whether the parties herein are entitled to the reliefs sought. c. Who bears the costs of the application dated 31st July 2025? Issue No. a. Whether the Notice of Motion application dated 31st July, 2025 has any merit whatsoever. 20. Under this Sub – heading, the Honourable Court will critically examine the merits of the substratum of the application herein. From the filed pleadings, it is clear that the main order sought is granting of the orders for the preservation of or safeguarding the suit property through status quo. Hence, to begin with, there will be need to appreciate the legal meaning of this concept. The Black’s Law Dictionary, Butter Worth’s 9th Edition, defines “Status Quo” simply as a Latin word which means ‘the situation as it exists’. The purpose of an order of status quo has been reiterated in a number of decisions. This Court has occasionally deliberated on this issue expansively. For instance, it addressed it in the following cases as cited in “Fatuma Abdi Jillo – Versus - Kuro Lengesen & another [2021] eKLR”; 21. In the case of: “Republic – Versus - National Environment Tribunal, Ex - Parte Palm Homes Limited & another [2013] e KLR”, Odunga J. on the subject matter stated as follows:“ 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 efiect must be maintained. An order maintaining status quo is meant to preserve existing state of afiairs...Status quo must therefore be interpreted with respect to existing factual scenario..." https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2750/eng@2026-04-24 5

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22. While tin he case of:- “Kenya Airline Pilots Association (KALPA) – Versus - Co-operative Bank of Kenya Limited & another [2020] eKLR”, the purpose of a status quo order was explained as follows: “ By maintaining the status quo, the court strives to safeguard the situation so that the substratum of the subject matter of the dispute before it is not so eroded or radically changed or that one of the parties before it is not so negatively prejudiced that the status quo ante cannot be restored thereby rendering nugatory its proposed decision.” 23. Justice Bashaija Andrew in the Ugandan case of: “Makerere University – Versus - Omumbejja Namusisi Farida Naluwembe Namirembe Bwanga IICMA No. 658 of 2013”, defined the term “Status Quo” to mean; the existing state of afiairs existing before a given particular point in time. In case of land, status quo is purely a question of fact, and the relevant consideration is the point in time at which the acts complained of as afiecting or likely to afiect or threatening to afiect the existing state of things occurred. Issue No. b). Whether the parties herein are entitled to the reliefs sought. 24. Under this Sub – title, the Honourable Court will now endeavor to apply the above elaborate legal principles to the instant case. As already stated extensively, the purpose of status quo orders as discussed in the above authorities is to preserve the current state of afiairs thus preventing altering circumstances of the subject matter until the suit is heard and determined. As regards the instant case, the suit properties are registered in the names of the Respondents. However, it is the Applicants case that they are in occupation of the suit properties as evidenced by the documentary evidence including a set of photographs showing the vast developments on the suit property. 25. The main substratum ad gist of the suit is on ownership of the suit properties. This is a weighty and triable matter. The Applicants are apprehensive that unless status quo orders are issued, they might be evicted from the properties before the suit commences and a determination on ownership is made. The argument are extremely persuasive. Based on these circumstances, in the interest of Natural Justice, Equity and Conscience as founded under the provision of Article 25 ( c ), 50 ( 1 ) & ( 2 ) and 159 ( 1 ) & ( 2 ) of the Constitution of Kenya, 2010 on “Fair hearing” and Sections 3 & 13 of the Environment & Land Court Act, No. 19 of 2010; Sections 101 of the Land Registration of Land Act, No. 3 of 2012 and Section 150 of the land Act, No. 6 of 2012 on the Jurisdiction of this Court, the court is convinced that pending the hearing and determination of the Originating Summons instituting this suit, it will be prudent for status quo orders to be in place. Indeed, “the Doctrine of Lis Pendens” becomes relevant and hence applicable here. Issue No. b). Who bears the costs of the application dated 31st July 2025? 26. It is now well established that the issue of Costs is at the discretion of Courts. Costs mean the award that a party is granted at the conclusion of a legal action and proceedings in any litigation. The Proviso of Section 27 ( 1 ) of the Civil Procedure Act, Cap. 21 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 give all the necessary directions for the purposes aforesaid; and the fact that the court has no jurisdiction to try the suit shall be no bar to the exercise of those powers" https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2750/eng@2026-04-24 6

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27. In the case of “Republic – Versus - Rosemary Wairimu Munene, Ex - Parte Applicant – Versus - Kururu Dairy Farmers Co-operative Society Limited” the Court held:“ The issue of costs is the discretion of the court as provided under the above Section. The basic rule on attribution of costs is that costs follow the event it is well recognized that the principle costs follow the event is not to be used to penalize the losing party; rather it is for compensating the successful party for the trouble taken in prosecuting or defending the case" 28. In the instant case, the court has considered the nature of the orders sought and the prevailing circumstances of the case. Therefore, I see no suficient reason to grant costs to either party. For that reason, each party will bear its own costs. D. Conclusion and Disposition 29. Consequently, upon conducting an elaborate analysis of the issues set out herein, this Honourable Court based on the Principles of Preponderance of Probabilities and the balance of convenience proceeds to grant the following specific orders. These are:a. That the Notice of Motion application dated 31st July 2025 be and is hereby found to be merited and hence allowed accordingly. b. That pending the hearing and determination of this suit, orders of maintaining status quo and or preserving all those parcels of land registered as Kwale/ Diani S.S/5336 & Kwale/Diani S.S/5337 are hereby issued. c. That for expediency sake, there be a Pre – Trial conference conducted on 29th June, 2026 in accordance with the provision of Order 11 of the Civil Procedure Rules, 2010. Thereafter, there be a hearing on 26th October, 2026 preferably through Physical means thereof. d. That each party to bear its own costs. It is ordered accordingly. RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS 24TH DAY OF APRIL 2026 HON. MR. JUSTICE L.L NAIKUNI, ENVIRONMENT & LAND COURT AT KWALE. Ruling delivered in the presence of: a. Mr. Daniel Disii, the Court Assistant. b. Mr. Mungai Kamau Advocate for the 1st, 2nd, 3rd, 4th, 5th & 6th Applicants. c. No appearance for the Respondent. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2750/eng@2026-04-24 7

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