Joab Josiah Langi Osumba & 3 Others v Thomas Okong'o Owiny, Chief Lands Registrar & Attorney General

RULING 1 The subject of the ruling is a Notice of Motion application dated 12th June, 2026. The application seeks the following orders; 1) THAT pending the hearing and determination of this application inter partes, this Honourable Court be pleased to issue a temporary injunction restraining the 1st Defendant/Respondent, his agents, servants, employees, contractors, workmen, or any person acting on his instructions or on his behalf, from entering, remaining on, surveying, constructing, depositing materials, altering boundaries, or in any manner whatsoever interfering with Land Parcel No. SIAYA/NYAGOKO/1383 or any part thereof. 2) THAT pending the hearing and determination of this application, this Honourable Court be pleased to issue a temporary injunction directing that the status quo on Land Parcel No. SIAYA/NYAGOKO/1383 as of the date of filing of this suit be maintained and preserved. 3) THAT this Honourable Court be pleased to issue an order directed to the Officer Commanding Station (OCS), Aram Market Police Station, and the Chief, Asembo South Location, to take all necessary measures to keep the peace on Land Parcel No. SIAYA/NYAGOKO/1383, prevent any acts of interference by any party, and maintain the status quo pending the hearing and final determination of this suit. SIAYA RULINGS ELC E012 OF 2024 (OS) 2

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4) THAT this Honourable Court be pleased to issue any further or other orders as it may deem fit and just in the circumstances. 5) THAT costs of this application be provided for. 2 The application is supported by the affidavit sworn on 11th June 2026 by the 2nd Plaintiff. The applicant depones as follows; - 3 That the 2nd Plaintiff/Applicant and their families have lived openly, peacefully, continuously and exclusively on the suit land since 1971 when their late father Evans Osumba Lang'u received the land from his brother, Malaki Odawa Lang'u the original registered proprietor. (A sketch/map showing the homestead and established boundaries is annexed as JOO-1). 4 That the primary suit was instituted seeking a vesting order under Sections 7, 17 and 38 of the Limitation of Actions Act (Cap 22, Laws of Kenya) on the ground that the Plaintiffs/Applicants' continuous occupation for over fifty (50) years has extinguished any registered title by operation of law through adverse possession. 5 That despite the pendency of these judicial proceedings and without obtaining leave of this Court, the 1 st Defendant/Respondent had recently brought a licensed surveyor onto the suit land to alter its established boundaries. (Photographs of the surveyor and his team on site are annexed as JOO-2). SIAYA RULINGS ELC E012 OF 2024 (OS) 3

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6 The 2nd Plaintiff/Applicant avers that 1st Defendant/Respondent has unilaterally and unlawfully pushed the boundary of the land into the suit property, effectively dividing Land Parcel No. SIAYA/NYAGOKO/1383 along the middle. The newly repositioned boundary cuts through the property, severing and appropriating the portion containing the family homestead of the late Evans Osumba which is the sole ancestral home where the Plaintiffs/Applicants were born and raised. 7 That the 1st Defendant's/Respondents actions directly contradict and flout the official findings and boundary delineations of the survey report prepared by the District Lands Registrar pursuant to court orders in Bondo PM ELC Case No. E017 of 2021. (A copy of the District Lands Registrar's Ground Survey Report dated 26 th January 2022 is annexed as JOO-3). 8 It is deponed that in an effort to intimidate and dispossess the Plaintiffs/Applicants, the 1st Defendant/Respondent caused lorries of sand to be delivered and dumped directly within the Plaintiffs/Applicants' homestead compound in clear preparation for unauthorized construction activities. (Photographs showing the dumped sand heaps are annexed as JOO-4). 9 It is averred that the cumulative effect of the 1 st Defendant/Respondent's acts is to create facts on the ground that will render the Plaintiffs/Applicants' substantive application nugatory and worthless, even if SIAYA RULINGS ELC E012 OF 2024 (OS) 4

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this Honourable Court rules in their favour. The said acts constitute an interference with and contempt of the court process. 10 It is stated that the 1 st Defendant/Respondent's unauthorized actions have created severe commotion and disturbance on the suit property, posing a real and present danger of physical confrontation, breach of the peace and irreparable injury to the suit land. 11 That the Plaintiffs/Applicants have no adequate remedy at law if the 1st Defendant/Respondent is not restrained, as any construction or structural alteration of boundaries will cause irreversible damage that cannot be compensated by an award of damages. 12 That the balance of convenience heavily favors the grant of the orders sought, as the Plaintiffs/Applicants risk losing their ancestral home of over seventy years, whereas the 1st Defendant/Respondent suffers no prejudice if the status quo is maintained pending trial. 13 That it is necessary, just and expedient for the Court to order the Officer Commanding Station (OCS) at Aram Market Police Station and the Local Area Chief (Asembo South Location) to enforce peace, maintain the status quo and prevent further acts of provocation or interference by any party. SIAYA RULINGS ELC E012 OF 2024 (OS) 5

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14 The 1st Defendant responded by affidavit sworn by Thomas Okongo on 20/6/2026 filed on 21/7/2026. Which I have considered. 15 The Honorable Attorney General entered appearance on 3rd February on behalf of the 2nd and 3rd Defendants/Respondents but did not participate in the application. SUBMISSIONS 16 The court issued directions that the application be determined by way of written submissions. The 1st Defendant/Respondent filed his written submissions on 13th September, 2026 well outside the timelines fixed by this Court and without seeking or obtaining leave to have them placed on the court record. I find the delay inordinate and I will not consider the submissions. ANALYSIS AND DETERMINATION 17 I have carefully considered the Notice of Motion application, the Supporting Affidavit sworn by the 2 nd Plaintiff/Applicant and the annexures thereto. The following issues commend determination: 1) Whether the Plaintiffs/Applicants have met the requisite conditions to warrant the granting of temporary injunction. 2) Who bears the costs of the Application? SIAYA RULINGS ELC E012 OF 2024 (OS) 6

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18 The Plaintiffs/Applicants seeks an injunction pending the hearing and determination of this suit. The principles applicable in an application for an injunction were laid down in the celebrated case of Giella vs Cassman Brown & Co Ltd 1973 EA 358 as follows: a) First, the Plaintiff/Applicant must show a prima facie case with a probability of success. b) Secondly, an interlocutory injunction will not normally be granted unless the suffer Plaintiff/Applicant might otherwise irreparable which would harm not be adequately compensated by an award of damages. c) Thirdly, if the court is in doubt, it will decide an application on a balance of convenience. 19 Thus, the first question this court ought to ask is whether the Plaintiffs/Applicants have established a prima facie case. A prima facie case was defined by the Court of Appeal in Mrao Ltd vs First American Bank of Kenya Ltd & 2 Others [2003] KLR 125. “A prima facie case in a civil application includes but is not confined to a genuine and arguable case”. It is SIAYA RULINGS ELC E012 OF 2024 (OS) a case which, on the material 7

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presented to the court, a tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter.” 20 In the primary suit, the Plaintiffs/Applicants seek a vesting order over Land Parcel No. SIAYA/NYAGOKO/1383 based on the doctrine Plaintiffs/Applicants of adverse uncontroverted possession. deposition The reveals that their families have occupied, utilized and maintained their sole ancestral home on the suit land continuously, openly and without interruption since 1971 a period exceeding fifty (50) years. 21 The Plaintiffs/Applicants have supported these assertions with a sketch map showing the homestead and boundaries and an official District Lands Registrar’s Ground Survey Report dated 26th January 2022, which seem to indicate their long-standing occupation. They have further presented photographic evidence demonstrating that the 1st Defendant/Respondent has recently invaded the suit land, attempted to alter established boundaries and dumped sand within their homestead compound while this suit is active. 22 On the uncontroverted evidence before this Court, the Plaintiffs/Applicants have demonstrated occupation of the suit land. They have established an arguable property right and a clear ongoing infringement of that right by the SIAYA RULINGS ELC E012 OF 2024 (OS) 8

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1st Defendant/Respondent. I am therefore satisfied that the Plaintiffs/Applicants have established a strong prima facie case with a probability of success. 23 But having noted the foregoing the court is still mindful of the fact that the suit property still remains registered in the name of a third person and the issues of occupation will still require to be tested in a full hearing and against the test to be met on the plea of adverse possession. It is also clear from the depositions that there have been boundary issues touching on the suit property which may also have to be resolved by another forum. The court will therefore look at the balance of convenience which is to ensure that none of the parties is prejudiced and at the same time ensure the preservation of the suit property. 24 But what is the balance of convenience? In the case of Pius Kipchirchir Kogo vs Frank Kimeli Tenai [2018] eKLR, the court in dealing with the issue on balance of convenience held as follows: “The meaning of balance of convenience in favour of the plaintiff is that if the injunction is not granted and the suit is ultimately decided in favour of the plaintiffs, the inconvenience to the plaintiff would be greater than that which would be caused to the Defendant/Respondents if an injunction is granted but the suit is ultimately dismissed. Although convenience SIAYA RULINGS ELC E012 OF 2024 (OS) it is it is really called balance of the balance of 9

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inconvenience and it is for the plaintiffs to show that the inconvenience caused to them would be greater than that which may be caused to the Defendant/Respondents. Should the inconvenience be equal, it is the plaintiffs who suffer? In other words, the plaintiffs have to show that the comparative inconvenience which is mischief from the likely arise from to withholding the injunction will be greater than which is likely to arise from granting it.” 25 The court has noted the allegations raised against the 1 st defendant of unlawful adjusting of boundaries, dividing the suit land and appropriating a portion of the late Evans Osumba’s estate Plaintiffs/Applicants' and depositing compound. Defendant/Respondent is sand inside the if 1 st Therefore, permitted to the continue constructing as evidenced by the material seen on the photos or altering the physical boundaries of the suit property during the pendency of this suit, the subject matter of the suit will be fundamentally altered. 26 The Court’s intervention is therefore necessary to ensure that the status quo remains intact, preventing the situation from degenerating further through the expansion of the alleged encroached area or forced dispossession while the substantive suit awaits determination on its merits. SIAYA RULINGS ELC E012 OF 2024 (OS) 10

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27 Moreover I see no prejudice to be suffered by the 1 st Defendant/Respondent if held in check and restrained from altering boundaries or undertaking construction until the main suit is heard and decided on its merits. Preserving the status quo protects both parties and prevents the litigation from being rendered an academic exercise. 28 The concept of status quo has been subject of may judicial pronouncements. Orders of status quo need not necessarily be prayed by the parties but can be given by the court based on the circumstances of a suit and under its general jurisdiction. This was outlined in the case of Thugi River Estate Limited & another Vs National Bank of Kenya Limited & 3 others [2015] eKLR “Firstly, an order of status quo will issue through a judicial process. Where the court in exercise of its general or statutory jurisdiction grants orders for maintenance in situ of a particular state or set of facts… the second or alternative order for status quo is the one issued by the court as a case management strategy. It is issued to provide assistance to the case. It also maintains a particular state of affairs or set of facts. Unlike a conservatory order or injunctive order, it is not descriptive. It is originated either by the court or by the SIAYA RULINGS ELC E012 OF 2024 (OS) 11

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consent of the parties. Often the court would not have been moved by either party. The court then expects an existing state of affairs or facts be preserved until a particular occurrence or until the courts’ further orders. It is intended to also freeze the state of affairs.’ 29 In the case of Kenya Airline Pilots Association (KALPA) v Co-operative Bank of Kenya Limited & another [2020] eKLR, the court stated: “... 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.” 30 In the case of Fatuma Abdi Jillo v Kuro Lengesen & another [2021] eKLR. In Republic Vs National Environment Tribunal, Ex-parte Palm Homes Limited & Another [2013] eKLR, Odunga J [as he then was] quotes various decisions in a bid to distinguish status quo from injunctive orders, stated; “When a court of law orders or a statute ordains that the status quo be maintained, it is SIAYA RULINGS ELC E012 OF 2024 (OS) 12

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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 existing state therefore be of affairs...Status interpreted with quo must respect to existing factual scenario..."In TSS Spinning & Weaving Company Ltd Vs Nic Bank Limited & another [2020] eKLR, the unpacked the purpose of a status quo order as follows: “In essence therefore, a status quo order is meant to preserve the subject matter as it is/existed, as at the day of making the order. Status quo is about a court of law maintaining the situation or the subject matter of the dispute or the state of affairs as they existed before the mischief determination crept in, the issue of pending in the contention. ………………………. In Murithi Jin Boabab Beach Resort as quoted by F. Tuiyot Saifudeen Abdullahi & 4 Others in Mombasa High Court Misc. Civil Cause No. 11 of 2012, described the nature of a status quo order as follows: “In my view, an order to Status quo to be maintained is different from an order of injunction both in terms of the principles for grant and the practical effect of each. While the latter is a substantive equitable remedy granted upon SIAYA RULINGS ELC E012 OF 2024 (OS) 13

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establishment of a right, or at interlocutory stage, a prima facie case, among other principles to be considered, the former is simply an ancillary order for the preservation of the situation as it exists in relation to pending proceedings before the hearing and determination thereof. It does not depend on proof of right or prima facie case. In its effect, an injunction may compel the doing or restrain the doing of a certain act, such as, respectively, the reinstatement of an evicted tenant or the eviction of the tenant in possession. An order for status quo merely leaves the situation or things as they stand pending the hearing of the reference or complaint.” (Emphasis is mine). 31 The Plaintiffs/Applicants have expressed fears of physical confrontation and a breach of the peace arising from the 1st Defendant's/Respondent’s continuous acts of provocation on the suit land. They have sought that the Officer Commanding Station (OCS), Aram Market Police Station and the Area Chief, Asembo South Location be tasked with enforcing peace and ensuring that this Court's order preserving the status quo is strictly observed by all parties. 32 My considered view is that it is not necessary to bog down the police with such duties when parties themselves SIAYA RULINGS ELC E012 OF 2024 (OS) 14

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should be able to exercise restraint. If any party causes a breach of the peace, then they should be dealt with appropriately under the criminal justice system. Moreover, court orders once issued are expected to be obeyed. In the event of disobedience, the regime of contempt proceedings kicks in upon application by an aggrieved party. 33 My understanding of the status on the ground is that the material has already been dumped on the property but no construction has commenced as yet. Further that the boundary survey has not been fully affected and that the applicants are in occupation and eviction has not occurred. Further that the suit property has not been alienated. 34 The upshot of the foregoing is that the Notice of Motion application dated 12th June, 2026 is merited. 35 The following orders therefore issue 1) THAT an order be and is hereby issued directing that the status quo on Land Parcel No. SIAYA/NYAGOKO/1383 be maintained regarding the Plaintiffs/Applicants and their family’s possession and occupation as of the date of filing of this suit be maintained and preserved by all parties pending the hearing and final determination of this suit. 2) THAT pending the hearing and final determination of this suit, there shall be no construction or further construction SIAYA RULINGS ELC E012 OF 2024 (OS) on the Land Parcel No. 15

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SIAYA/NYAGOKO/1383 by the 1st Defendant/Respondent, his agents, servants, employees, contractors, workmen or any person acting under his instructions or on his behalf 3) THAT pending the hearing and final determination of this suit the Plaintiffs shall also not undertake any further construction on the Land Parcel No. SIAYA/NYAGOKO/1383. 4) THAT the findings and implementation of any boundary survey relating to land Parcel No. SIAYA/NYAGOKO/1383 shall await the determination of this suit. 5) That an order of inhibition is hereby issued restricting the registration of any disposition in the register of land Parcel No. SIAYA/NYAGOKO/1383. 6) THAT the costs of this application shall abide by the outcome of the main suit. It is so ordered Dated at Siaya this 29th Day of September 2026 HON. JUSTICE A. E. DENA JUDGE 29/09/2026 Ruling delivered virtually through Microsoft Teams Video Conferencing Platform in the Presence of: Mr. Okeyo for Plaintiffs/Applicants MR. Okoth Holding brief for Ms. Essendi for 2nd & 3rd respondent N/A for Respondent 1st Defendant SIAYA RULINGS ELC E012 OF 2024 (OS) 16

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Court assistant: Victor Bwire SIAYA RULINGS ELC E012 OF 2024 (OS) 17

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