Maria Auma Onyando & Another v Leotine Malala & 3 Others

that the 1st and 2nd Defendants, together with Gerald O. Malala and Robinson O. Malala, and their agents, servants, legal representatives, and hirelings, maintain the status quo pending the hearing and determination of this case. The Application [2] The application is grounded on the grounds set out on the face of the Notice of Motion, which are further elaborated in the Supporting Affidavit and a Further Affidavit deposed to by the 2nd Applicant, Francis Otieno Onyando. The Applicants’ claim is that sometime in May 2026, the sons/step-sons of the 1st and 2nd Respondents, Gerald O. Malala and Robinson Malala, led a group of young men to the suit plots, where they demolished a residential structure and damaged mature maize crops. It is further alleged that on 16th June, 2026, the same individuals returned to the site, where they cut down and set fire to sugarcane plantations belonging to the Applicants. The Applicants contend that no court bailiff has ever served them with a lawful court order requiring them to deliver vacant possession of the suit plots. [3] The Applicants referred to a 1996 ruling of the Land Disputes Tribunal (Case No. 3) as one of the contested issues in the suit and averred that the 1 st and 2nd Respondents have long since recovered the Kshs. 550,000 ordered therein. The Applicants assert that, because the Defendants possess the title deeds, their ELCLC E061 OF 2025-RULING Page 2

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proprietary interests are protected by the doctrine of lis pendens, and therefore the Defendants will suffer no prejudice if the Court preserves the properties by granting an order maintaining the status quo. [4] In his Further Affidavit sworn on 30th June, 2026, the 2nd Applicant acknowledged the existence of a prior eviction decree in Tamu MCELC No. 02 of 2017, but argued that the judgment was not directed against the present Applicants, but rather against third parties. The Applicants also distanced themselves from a series of previously dismissed injunction applications, averring that Kisumu ELCLOS No. 003 of 2025 was voluntarily withdrawn to pave the way for the current litigation, and that a previous dismissal in ELCA No. E073 of 2025 is not binding on the current application. The 1st and 2nd Defendants/Respondents’ Replies [5] The 1st and 2nd Respondents opposed the application by filing Grounds of Opposition dated 11th July, 2026, accompanied by a Replying Affidavit sworn by the 1st Respondent on the same date. They challenged the application on both substantive and procedural grounds, deeming it incurably defective, unmerited, frivolous, vexatious, brought in bad faith, and an abuse of the court's process. ELCLC E061 OF 2025-RULING Page 3

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[6] The 1st Respondent deposed that she and the 2nd Respondent are the registered proprietors of the suit parcels. They asserted that their proprietary rights were affirmed in Tamu MCELC No. 02 of 2017. They also obtained an eviction order requiring the removal of all trespassers from the suit lands. The said Respondents averred that a lawful eviction was carried out under the supervision of the Officer Commanding Station (OCS) of Koru Police Station. They listed the individuals evicted as Kennedy Omondi Omieri, Peter Odhiambo Omieri, and Colleta Adoyo Nyaturi, noting that others, such as Charles Otieno Nyaturi and John Otieno Omieri, had previously vacated voluntarily. [7] The Respondents contend that the Applicants have never been in physical possession of the suit parcels, arguing that had they been residing on the land, they would have been sued alongside the other trespassers in the 2017 Tamu case and subsequently evicted. Consequently, they argue that the status quo the Applicants seek to maintain does not exist; the true status quo is that their family is in actual, exclusive, and lawful possession of the parcels, having cleared the land of trespassers. [8] The 1st Respondent argued that the instant application invites this Court to sit on appeal of its own prior decisions. She pointed out that the Applicants have filed a barrage of identical applications seeking temporary injunctions and status quo ELCLC E061 OF 2025-RULING Page 4

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orders over the same properties, all of which coordinate benches of the Environment and Land Court have dismissed. These include Kisumu ELCLOS No. E003 of 2025, Kisumu ELCLA No. E073 of 2025, and a Notice of Motion dated 9th Oct 2025 in the instant suit. They assert that by filing the present application barely three months after Justice Asati dismissed an identical application in this case file, the Applicants are acting in blatant defiance of judicial finality. The Applicants’ Submissions [9] The Applicants filed written submissions dated 22nd July 2026, relying heavily on the doctrine of lis pendens. Counsel argued that the essence of the doctrine is that neither party should be permitted to deal with the suit property in a manner calculated to defeat justice or render the eventual judgment nugatory. To support their argument, the Applicants referred to the decision in Ivory Concepts Ltd v Ndegwa & 2 Others (ELC Case No. E226 of 2023), which held that preserving the property in a pending suit is necessary to preserve the substratum of the case. In that case, the court allowed the respondents to remain in possession while prohibiting further development, leasing, or sale of the property until the case concluded. [10] Further, the Applicants relied on Kibiba v Nguwa (ELC Case No. 137 of 2018), in which the court cited the Court of Appeal decision in Mugah v Kiunga ELCLC E061 OF 2025-RULING Page 5

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[1988] KLR, to support the proposition that status quo orders should issue not only in response to a formal injunction application but also as a case-management strategy. The Applicants submit that a status quo order is highly proportionate and appropriate, causing no prejudice to either party, and therefore urge this Court to grant the prayers pending the hearing and determination of the suit. Analysis and Determination [11] The Court has reviewed the application, the rival affidavits, and the Applicants’ written submissions, and has identified a single issue for determination: whether the application meets the threshold for a status quo maintenance order. The contours and limitations of this equitable remedy. [12] To assess the application properly, I begin by outlining the legal criteria for granting a status quo preservation order. According to Black’s Law Dictionary, 10th Edition, the term ‘status quo’ means “The situation that currently exists.” In Storelli v Pello & Another [2025] KEELC 1347 (KLR), Justice L.L. Naikuni provided an extensive discussion of the concept of status quo by citing Republic v National Environment Tribunal, Ex parte Palm Homes Limited & Another [2013] eKLR, where Odunga J (as he then was) stated: ELCLC E061 OF 2025-RULING Page 6

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“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 effect must be maintained. An order maintaining status quo is meant to preserve the existing state of affairs...Status quo must therefore be interpreted with respect to existing factual scenario...”. [13] The other decision relied on by the Court is Kenya Airline Pilots Association (KALPA) v Co-Operative Bank of Kenya Limited & another [2020] eKLR, where the Court held that: “... 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.” [14] These decisions synthesise that the first key factor requires analysing the factual situation at the time the litigant seeks an equitable order, because a court cannot invent a status quo that does not exist. It can only acknowledge and uphold what is empirically present. The second parameter emphasises the protective purpose of the order: to prevent the radical erosion of the subject matter, which ELCLC E061 OF 2025-RULING Page 7

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would otherwise render a court’s final decision an academic exercise. The third, and arguably most vital, element is that the preservation timeline must reflect the legitimate, existing factual and legal state of affairs on the date the court is moved, or immediately before any unlawful alteration of those affairs. [15] Whether the application meets these requirements depends on an evaluation of the documentary record before this Court. This analysis reveals a chronological sequence of previously dismissed applications by the Court. In Kisumu ELCLOS No. E003 of 2025, an application seeking a temporary injunction and a stay of execution of Tamu MCELC No. 02 of 2017 was dismissed on 9th October 2025 by Okong’o J (as he then was), who held that the Applicants lacked locus standi without a Grant of Letters of Administration and failed to establish a prima facie case to warrant the granting of injunctive orders. [16] Subsequently, in Kisumu ELCLA No. E073 of 2025, an application seeking a stay of execution of the Tamu judgment and an injunction against dealings with the suit properties pending appeal was dismissed on 20th November 2025 by Asati J; the Court noted that execution of a judgment cannot be stayed by way of an order of temporary injunction, and that, in any event, the execution was lawful. Within this suit, a Notice of Motion dated 9th October 2025, seeking an injunction and a stay of proceedings/execution of Tamu MCELC No. 02 of 2017, was dismissed on ELCLC E061 OF 2025-RULING Page 8

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5th March 2026 by Asati J, who found that the Applicants failed to demonstrate grounds for a temporary injunction, reiterating that the actions complained of were acts of execution of previous court decisions. The Applicants filed the current application a mere three months later. [17] The Applicants have simply re-packaged their request for an injunction as an application for an order to maintain the status quo. This Court finds this application to be a backdoor mechanism to circumvent the previous, unappealed determinations. I am not persuaded that the Applicants have demonstrated any material change in circumstances between 5th March 2026 and 16th June 16, 2026 that would warrant revisiting the interim orders. [18] The factual scenario, addressed in the previous applications, is that at the time of filing this application, the Respondents had already been placed in possession of the land by lawful judicial process and held valid titles to the suit properties, which had not been impeached on appeal or otherwise. The Applicants are indirectly and essentially asking this Court to rewind the clock, stay execution of the Tamu judgment, and overturn the decisions cited above. At a full hearing, the Applicants will have to prove that they were not, and could not be, affected by the eviction orders of 30th April 2026. ELCLC E061 OF 2025-RULING Page 9

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[19] Otherwise, at this stage of the proceedings, the legal and factual status quo favours the Respondents’ claim of exclusive possession as absolute proprietors of the lands, affirmed by lawful judicial process. Consequently, invoking the doctrine of lis pendens, a fundamental tenet of property law designed to prevent the transfer or alienation of disputed property while litigation is ongoing, is not helpful given this case's history. [20] Another irregularity in the application is the inclusion of Gerald O. Malala and Robinson O. Malala in the prayer for preservation of the status quo, despite their not being listed as Defendants or Respondents in this suit. The Applicants allege that these individuals are the primary actors perpetrating violence, including arson, assault, and malicious damage to property, in an attempt to enforce the eviction. A bedrock principle of natural justice, encapsulated in the legal maxim audi alteram partem (hear the other side), is that a court of law cannot issue binding, coercive equitable orders against individuals who are not parties to the litigation and who have not been afforded an opportunity to be heard in their own defence. Therefore, the prayers seeking to bind non-parties are legally untenable and procedurally incompetent. Final Orders ELCLC E061 OF 2025-RULING Page 10

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[21] In sum, the Applicants' Notice of Motion dated 16th June 2026 lacks merit and is hereby dismissed in its entirety. The costs of this application shall be borne by the 1st and 2nd Plaintiffs/Applicants and awarded to the 1st and 2nd Defendants/Respondents. Delivered virtually, signed and dated this 24th day of September 2026 C.C. Oluoch Judge In the presence of: Mr Akira, holding brief for Mr Nyanga of the 1st and 2nd Defendant/Respondent No appearance for the Applicant Faith Court Assistant ELCLC E061 OF 2025-RULING Page 11

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