Okello & 6 others v Letting alias Kokwas & another

2. The facts in support of the prayers sought hereinabove were outlined in the body of the present Application as well as the Supporting Adavit attached therein and can be summarized as follows; i. The Court herein did issue an Order on the 04.12.2015 directing that the Status Quo existing at the material time be maintained pending the hearing and determination of the main suit herein. ii. Based on the provisions of Order 40 Rule 6 of the Civil Procedure Rules, the Order issued on the 04.12.2015 would only be valid for a period of twelve months thereof and thereafter, it would be extended by an Order of the Court. iii. Unfortunately, the 1st to 7th Respondents did not seek an extension of the Order issued on the 04.12.2015 on or before the 04.12.2016 and therefore the said Order did lapse by euxion of time. iv. In essence, the Applicant did pray that the Orders sought in the present Application be granted and the 1st to 7th Respondents be condemned to pay costs thereof. 3. The present Application was indeed served on the 1st to 7th Respondents as well as the 2nd Defendant/ Respondent herein. 4. The 1st to 7th Respondents did oppose the present Application by way of a Replying Adavit dated 15.06.2026. 5. The 1st to 7th Respondents did plead the following facts in response to the present Application; i. The 1st to 7th Respondents herein did plead that the Order issued on the 06.12.2015 was still alive and binding against the Applicant herein as the same had never been discharged. ii. The 1st to 7th Respondents further state that on the 03.08.2020, the Court in recognition of the validity of the Order issued on the 06.12.2015 did reiterate that the 1st Defendant ensures compliance of the same pending the hearing and determination of the main suit herein. iii. The 1st to 7th Respondents did plead that the present Application was led in bad faith as a cover up of the Applicant’s unlawful acts of demolishing their structures on the suit property before the hearing and determination of the main suit was concluded. iv. The 1st to 7th Respondents therefore did seek that the Court dismisses the Applicant’s Application with costs awarded to them. 6. The 2nd Defendant (hereinafter referred to as “the 8th Respondent”) did respond to the present Application through a Replying Adavit dated 05.06.2026. 7. In the Replying Adavit dated 05.06.2026, the 8th Respondent did plead the following facts in support of the present Application; i. The 8th Respondent did admit that indeed, the Court did issue an Order on the 06.12.2015. ii. However, the 1st to 7th Respondents did not extend the same prior to the lapse of 1 year as envisaged by the provisions of Order 40 Rule 6 of the Civil Procedure Rules, 2010. iii. The 8th Respondent did plead that the 1st to 7th Respondents were not serious with the quick determination of this suit as they had been ling numerous interlocutory applications that hinder the hearing of the main suit. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5427/eng@2026-09-16 2

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iv. In conclusion, the 8th Respondent did seek that the Court allows the present Application with costs. 8. The 1st to 7th Replying Adavit as well as the 8th Respondent’s Replying Adavits were duly served on the Applicant herein but there was no Further and/or Supplementary Adavit that was led by the Applicant in response to the same. 9. The Court did direct that the present application would be canvassed by way of written submissions. 10. Based on the above directions, the Applicant did le his submissions dated 10.06.2026 in support of the present Application while the 1st to 7th Respondents did le their submissions dated 13.07.2026 in opposition of the present Application. 11. Indeed, the Court has carefully perused the present Application, the responses by the 1st to 7th Respondents as well as the 8th Respondents including the submissions in support and against the prayers sought and identies the following issues for determination; Issue No. 1– Is the order issued on the 06.12.2015 valid and binding on the parties herein or not? Issue No.2 – Is the order sought in the present application merited or not? Issue No. 3 – Who shall bear the costs of the present application? 12. The above issues will now be discussed as provided hereinbelow. Issue No. 1– Is the order issued on the 06.12.2015 valid and binding on the parties herein or not? 13. The rst issue for determination is whether the Order issued on the 04.012.2015 is still valid and binding on the parties herein or not. 14. The Applicant herein did plead and submit that the Order issued on the 04.12.2015 was subject to the provisions of Order 40 Rule 6 of the Civil Procedure Rules, 2010. 15. The Applicant did further plead and submit that under Order 40 Rule 6 of the Civil Procedure Rules, 2010, an Interlocutory Order can only subsist for a period of not more than One Year from the time it was issued unless extended with leave of the Court. 16. The Applicant therefore was of the considered view that the Order issued on the 04.12.2015 had since lapsed on the 04.12.2016 by euxion of time. 17. In addition to the foregoing, the 1st to 7th Respondents have never sought leave to extend the Order issued on the 04.12.2015. 18. In essence, the Applicant did submit that the Order issued on the 04.12.2015 was no longer valid and/ or binding on the parties herein. 19. The 1st to 7th Respondents on the other hand were of the view that the Order issued on the 04.12.2015 was valid and binding on the parties herein. 20. The 1st to 7th Respondents did plead and submit that the Order issued on the 04.12.2015 was to subsist during the hearing and determination of the main suit. 21. In view of the fact that the main suit in this proceeding has not been determined, then the Orders of 04.12.2015 are still valid and binding on the parties herein. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5427/eng@2026-09-16 3

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22. The 8th Respondent did support the present Application as well as the submissions led by the Applicant. 23. Based on the above pleadings by all the parties, it is not in dispute that an Order was made on the 04.12.2015 directing parties to maintain the Status Quo that was subsisting at that time until this suit had been heard and determined. 24. It is not also is dispute that the Order issued on the 04.12.2015 was an interlocutory order granted under the provisions of Order 40 Rule 1 and/or 2 of the Civil Procedure Rules, 2010. 25. The provisions of Order 40 Rule 6 of the Civil Procedure Rules, 2010 states as follows; “ Where a suit in respect of which an interlocutory injunction has been granted is not determined within the period of twelve months from the date of the grant, the injunction shall lapse unless for sucient reason the Court orders otherwise” 26. Clearly therefore, if a party is granted an Interlocutory Order pending the hearing and determination of the main suit, there is a presumption by the law that such a litigation must be completed at least within twelve months from the date of issuance of the Interlocutory Order. 27. If the litigation is not completed with a period of twelve months from the date of issuance of the Interlocutory Order, the Court retains the discretion of extending the same periodically until otherwise ordered. 28. The signicance of the period provided under Order 40 Rule 6 of the Civil Procedure Rules, 2010 was to prohibit the use of an Interlocutory Injunction or Order as a Permanent Injunction by litigants who are not willing to expeditiously litigate the matters after issuance of the Interlocutory Order. 29. The proceedings in this le conrms that an Interlocutory Order was issued on the 04.12.2015 in favour of the 1st to 7th Respondents against the Applicant and the 8th Respondent herein. 30. However, the 1st to 7th Respondents herein have not demonstrated to this Court that the Interlocutory Order issued on the 04.12.2015 was extended with leave of the Court either before or on the lapse of the twelve months’ period which ended on the 04.12.2016. 31. In such a scenario, the Order issued on the 04.12.2015 did lapse by euxion of time on the 04.12.2016. 32. In essence, this Court is of the considered view and nding that although the main suit is yet to be heard and determined, the 1st to 7th Respondents Interlocutory Orders issued on the 04.12.2015 no longer exist and are not binding to the parties herein unless fresh orders are granted by the Court upon a fresh application. Issue No.2 – Is the order sought in the present application merited or not? 33. The second issue for determination is whether the present Application is merited or not. 34. According to the nding in Issue No.1, this Court is of the considered nding that the present Application is merited and a declaration that the Order issued on the 04.12.2015 has lapsed by euxion of time should be granted. Issue No. 3 – Who shall bear the costs of the present application? 35. On costs, the same usually follow the event. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5427/eng@2026-09-16 4

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36. However, in view of the fact that the main litigation is still ongoing and the present application was purely to establish the legal status of the Interlocutory Order issued on the 04.12.2015, this Court hereby makes a nding that the costs of the present Application will abide the outcome of the main suit. Conclusion 37. In conclusion, this Court hereby makes the following Orders in determination of the present Application; a. The notice of motion application dated 20.02.2026 be and is hereby allowed. b. The interlocutory order issued on the 04.12.2015 be and is hereby declared lapsed by euxion of time and not binding on the parties herein anymore. c. The costs of the notice of motion dated 20.02.2026 will abide the outcome of the main suit. DATED, SIGNED AND DELIVERED AT ELDORET THIS ON THIS 16TH DAY OF SEPTEMBER, 2026. EMMANUEL.M. WASHE JUDGE In the presence of: Court Assistant: Brian Advocate for 1st to 7th Applicants: Mr. Mwaniki - No appearance Advocate for 1st Respondent: Mr. Momanyi Advocate for 2nd Respondent: Mr. Were – No appearance https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5427/eng@2026-09-16 5

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