Marianne Andree Messer & another v Ali Kongo Mwatiya & 4 others

(iv) (v) Costs of the suit. Any other relief the court may deem fit and just. 2. Concurrently with the plaint, they too filed a Notice of Motion application of even date seeking Interlocutory Injunctive orders as against the Defendants. Even before the determination of the Motion, the Plaintiffs/ Applicants filed a 2nd Notice of Motion dated 2nd December 2025 seeking to set aside order of status quo, orders for immediate removal of the 3rd Respondent from the house belonging to the 1st Plaintiff/ Applicant on the suit property and orders vesting the 1st Plaintiff/Applicant into the house. A 3rd application seeking similar order and dated 3rd December 2025 was similarly filed for the Plaintiff/Applicants by their then Advocates Akanga Matende and Company Advocates. 3. On the 24th February 2026, the 3 applications were all compromised to pave way for the main hearing of the suit. The status quo order was maintained until the hearing and determination of the suit. The matter was fixed for mention on 28thh September 2026 to confirm compliance with Order 11. 4. On the 20th May 2026, the plaintiffs/ Applicants however filed the present Notice of Motion application dated 19th May 2026. This Ruling is in respect to this present Motion. The Application 5. The application is grounded on Articles 22, 23, 40 and 159 of the Constitution of Kenya, Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act, Order 40 Rules 1, 2 and 3 of the Civil Procedure Rules and all other enabling provisions of the law. It seeks the following prayers: a) Spent b) THAT this Honourable Court be pleased to discharge, vary and/or set aside the status quo orders presently in force to the extent that the same preserve, sanction and/or perpetuate the Defendants’ unlawful occupation and continued trespass upon Plot Numbers KWALE/UKUNDA/6608 and KWALE/UKUNDA/6609. c) Spent d) THAT pending the hearing and determination of this suit, this Honourable Court be pleased to issue a mandatory injunction compelling the Defendants to forthwith vacate Plot Numbers 2 Ruling ELCLC E108/2025

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KWALE/UKUNDA/6608 and KWALE/UKUNDA/6609 and hand over vacant possession thereof to the Plaintiffs. e) THAT pending the hearing and determination of this suit, the Plaintiffs be restored into immediate possession and occupation of Plot Numbers KWALE/UKUNDA/6608 and KWALE/UKUNDA/6609, being the position obtaining prior to the Defendants’ unlawful invasion and forceful dispossession. f) THAT this Honourable Court be pleased to direct the Officer Commanding Station (OCS) Diani Police Station and/or the nearest police station to supervise, enforce and ensure full compliance with the orders issued herein and to provide security necessary for the restoration of possession to the Plaintiffs. g) THAT the costs of this Application be borne by the Defendants jointly and severally. 6 The grounds in support of the application are that, the 1st and 2nd Plaintiff are the lawful and registered proprietors of Plot Numbers KWALE/UKUNDA/6608 and KWALE/UKUNDA/6609 respectively having lawfully acquired the same for valuable consideration and have been in peaceful, open and uninterrupted occupation thereof for several years. They averred that the 1st Plaintiff established her residence on the suit properties and has over the years extensively developed the same. They indicated that the Defendants have no registrable interest, proprietary right, beneficial entitlement and/or lawful claim whatsoever over the suit properties, yet they have unlawfully invaded the suit properties, demolished structures thereon, vandalized the Plaintiffs’ property, threatened occupants and forcefully dispossessed the Plaintiffs without any court order or lawful authority. 7 They averred that the Defendants’ actions amount to blatant trespass, unlawful self-help, illegal dispossession and a deliberate violation of the Plaintiffs’ constitutional and proprietary rights. They noted that the Defendants unlawfully altered the prevailing status quo on the ground through force and intimidation and ought not to be permitted to benefit from their own illegal conduct. 8 They decried that the status quo orders presently in force have had the practical effect of preserving and entrenching the Defendants’ unlawful occupation to the grave prejudice of the Plaintiffs as the registered proprietors and unless the Court intervenes, the Defendants will continue to 3 Ruling ELCLC E108/2025

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unlawfully enjoy and benefit from the fruits of their illegal actions during the pendency of the suit while the Plaintiffs remain excluded from their own residence and properties. 9 They averred that the Plaintiffs have established a strong prima facie case with overwhelming probability of success. That the Plaintiffs continue to suffer irreparable loss, damage and prejudice including deprivation of access to their residence, destruction of property, loss of quiet enjoyment and continuing trespass, which loss cannot adequately be compensated by an award of damages. That the balance of convenience overwhelmingly tilts in favour of restoring possession to the lawful registered proprietors rather than allowing unlawful occupiers to continue benefiting from acts of forceful dispossession. 10 They argued that this is a clear, exceptional and deserving case warranting the grant of a mandatory injunction at an interlocutory stage in order to restore lawful possession, uphold the rule of law and prevent the perpetuation of an illegality and that justice, equity and fairness demands that the orders sought be granted. 11 The application is buttressed by a Supporting Affidavit sworn by Marianne Andree Messer, the 1st Plaintiff/Applicant herein sworn on the 19th May 2026. She deposes that, she was the registered and indefeasible proprietor of Plot Number KWALE/UKUNDA/6608 while the 2nd Plaintiff is the registered and indefeasible proprietor of Plot Number KWALE/UKUNDA/6609. She availed as evidence copies of the Certificates of Title. 12 It was her evidence that she acquired the suit properties through purchase of a ¼ acre portion of land out of Title Number KWALE/UKUNDA/2861 from KONGO ALI MWATIYA and MOHAMED HASSAN MWATIYA on the 20th December 1999. She annexed as evidence a copy of the sale agreement. It was this parcel that she later subdivided into the two suit properties Plot Numbers KWALE/UKUNDA/6608 and KWALE/UKUNDA/6609 and subsequently sold KWALE/UKUNDA/6609 to the 2nd plaintiff/applicant. She annexed as evidence a copy of the green card and a sale agreement entered between her and the 2nd Plaintiff. 13 She noted that their respective titles were lawfully issued under the provisions of the Land Registration Act, No. 3 of 2012, after due process and compliance with all legal requirements, and the same constitute prima facie and conclusive evidence of proprietorship which titles have never at 4 Ruling ELCLC E108/2025

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any time been revoked, cancelled, impeached and/or challenged before any competent court, tribunal or lawful authority whatsoever. 14 That prior to the unlawful invasion and forceful dispossession by the defendants herein, the Plaintiffs were in open, peaceful, uninterrupted, exclusive and actual possession and occupation of the suit properties as lawful proprietors thereof, without any interference, adverse claim and/or challenge from the Defendants or any other person. She deposed that she has her residence on the suit properties which has at all material times served as her home whenever she was in the country, has over the years carried out substantial developments including perimeter fencing, residential structures, improvements and other amenities at considerable expense. She availed photographs of the suit properties and developments thereon as proof of the depositions. 15 It was the 1st plaintiff’s evidence that on 4 March 2023, the 1st, 2nd and 3rd Defendants unlawfully entered parcel Number KWALE/UKUNDA/6609 and proceeded to demolish the perimeter fence erected thereon consequently interfering with the Plaintiffs' quiet possession, security and enjoyment of the said property. Subsequently, on the 9th July 2025, the 1st, 2nd and 3rd Defendants forcefully invaded the 1st Plaintiff’s residential house erected on Parcel Number KWALE/UKUNDA/6608 by breaking into the premises, vandalizing household items and valuables worth approximately Kshs. 900,000/= and unlawfully taking possession of the house without any lawful authorization. 16 She noted that the defendants acts of invasion and forceful takeover were carried out in a hostile, violent and intimidating manner calculated to instill fear and prevent any resistance, and in the course thereof, the Defendants threatened workers, occupants and persons present on the suit properties thereby creating an atmosphere of insecurity, intimidation and fear. 17 She dismissed the defendants’ acts as blatant trespass, unlawful self-help, forceful dispossession and an outright violation of the Plaintiffs' constitutional and proprietary rights, undertaken in complete disregard of the law, due process and established legal mechanisms for resolution of disputes relating to land. The plaintiff has as a consequence been deprived of the use, occupation, possession and quiet enjoyment of her lawfully acquired properties and residence, has suffered immense inconvenience, emotional distress, insecurity and disruption, and have effectively been rendered unable to access or utilize her home whenever I am in Kenya. She thus sought the 5 Ruling ELCLC E108/2025

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court’s intervention in restoring her back into possession pending the hearing of the suit. 18 The plaintiffs view the prevailing status quo presently obtaining on the suit property as one that arose from and continues to sustain an illegality to their detriment, the Defendants having unlawfully dispossessed and excluded them from the suit property. That the orders for maintenance of the status quo now seek to preserve and maintain the very circumstances created through an illegality under the guise of interim protection. They thus sought the Court’s intervention in setting aside the said status quo orders, orders which continue to aid, protect, and perpetuate an illegality. They argue that it is a cardinal principle of law that a court of law cannot sanction, endorse, or preserve a state of affairs founded on illegality, nor allow a party to continue enjoying the fruits of its wrongful and unlawful conduct. 19 The Plaintiffs’ surmise that the current status quo effectively rewards the Defendants for their illegal actions while simultaneously prejudicing and unlawfully depriving the Plaintiffs of their lawful possession, use, and enjoyment of the suit property. That maintaining the current position would amount to judicial approval of the Defendants' unlawful conduct and continued dispossession of the Plaintiffs. 20 The application was opposed vide the replying affidavit sworn by the 1st Defendant/Respondent with the authority of the 2nd and 3rd Defendants/Respondents. He disputes being in unlawful occupation and continued trespass upon plot numbers Kwale/Ukunda/6608 and Kwale/Ukunda/6609. He deposed that at the commencement of this suit, the Plaintiffs obtained status quo orders against the defendants pending hearing of the application inter-parties which orders they went ahead to misuse and evict the 2nd and 3rd Defendants despite the fact that the orders were not eviction orders. 21 That it was at the inter parties hearing, that the issues of the evictions were laid before the court and upon hearing, the court directed that the 3rd defendant be reinstated to the suit property pending the hearing and determination of the suit. According to the 1st Defendant, the Plaintiff and the 3rd defendant each have their separate houses within the suit premises and share a compound with each. That the Defendants were laying claim to the property by virtue of it being their ancestral home which the 1st plaintiff has since taken over, fraudulently subdivided and sold to among other the 2nd Plaintiff. 6 Ruling ELCLC E108/2025

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22 He reiterated that convinced of the need to maintain the status, the court issued status quo order and directed the matter to proceed to hearing of the main suit and arguing that variation, discharge or setting aside of status quo orders would essentially result in a determination of the suit at this interim stage as well as render the 3rd Defendant destitute as he has nowhere to live besides on the suit property. 23 He accused the Plaintiffs of prosecuting their suit on social media and besmirched the 1st defendant's name. He surmised that his counterclaim was based on fraud and that any orders besides the status quo orders would be unfair and unjust since they would amount to an eviction without granting them an opportunity to challenge the plaintiffs’ case and tender evidence to establish their counterclaim. He therefore sought the application be dismissed. 24 In a further affidavit, the plaintiff drew the courts attention to the contradiction between the 1st Defendant’s witness statement and the Replying Affidavit which they depose are clear evidence of the defendants’ lack of credibility. That while the Replying Affidavit swears that the 3rd Defendant would be rendered destitute by the loss of occupation of the suit property, the Witness Statement, avers that the 1st defendant and his brothers reside elsewhere entirely and do not even know who is presently occupying the suit property. They annexed an extract of the witness statement filed by the Defendants together with their Defence and Counterclaim as evidence of the assertion. 25.Counsel opted to argue the application by way of written submissions. The plaintiffs’ submissions are dated 26th July 2026 while the defence submissions are dated 27th July 2026 and both have considered in the analysis herein. Analysis and determination 26.Having carefully read and considered the Plaintiffs’ Application dated 19th May 2026, the Replying Affidavit sworn by the 1st Defendant on 26th May 2026, the submissions on record, and the relevant legal provisions, the issue for determination is whether the Plaintiffs’ application dated 19th May 2026 is merited. 27.The 1st Plaintiffs contention is that the status quo orders presently obtaining on the suit properties arose from an unlawful dispossession of the Plaintiffs by the Defendants, including the denial of access to the 1st 7 Ruling ELCLC E108/2025

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Plaintiff’s house. It is submitted that unless the orders are set aside, the prevailing status quo will continue to perpetuate an illegality. 28.On the other hand, the Defendants contend that the Plaintiffs relied on the status quo orders issued pending the inter partes hearing and determination of the application to evict the 2nd and 3rd Defendants from the suit properties. They further contend that when the application came up for hearing, the Court, upon hearing the parties who were present, directed that the 3rd Defendant be reinstated into the suit property. It is submitted for the Defendants that the suit properties comprise their ancestral home and that the 1st Plaintiff took possession, subdivided and disposed of portions thereof to third parties, including the 2nd Plaintiff fraudulently. 29.The Defendants therefore argued that on 23rd February 2026, the parties agreed to proceed with the main suit while maintaining the prevailing status quo in order to facilitate the expeditious determination of the matter. They argued that setting aside the status quo orders would result in the eviction of the 3rd Defendant from the suit property yet he has no alternative place to reside. 30.Now, in determining the application, it is necessary to consider the nature of the status quo orders in force and the circumstances in which they were made. The Court notes from the record that on 24th February 2026, the 1st Plaintiff, the 1st, 2nd and 3rd Defendants were represented by their respective advocates, while the 2nd Plaintiff appeared in person. On the said date, the Court recorded that, by consensus of the parties, the three pending Notices of Motion application dated 21st October 2025, 2nd December 2025 and 3rd December 2025 were to be compromised in order to pave way for the full trial of the matter and final determination. The Court further issued orders for the status quo to be maintained until the matter is heard and determined. 31.It is this status quo order that that the plaintiff feel aggrieved with and seek the same be discharged as it maintains an illegality committed against them by the defendants when they invaded the suit property and locked her out the 1st plaintiff out of her house. The too seeks a mandatory injunction to remove the defendants from the suit land and restore the plaintiff back to the suit property. 32.The legal framework for discharge and variation of an injunction is set out under Order 40 rule 7 of the Civil Procedure Rules, which provides 8 Ruling ELCLC E108/2025

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that the Court may discharge, vary or set aside an injunction upon application by a party dissatisfied with the order. 33.The discretion to discharge an injunction must be exercised judiciously. In the case of Filista Chamaiyo Sosten v Samson Mutai [2012] eKLR, the Court held that the discretion under Order 40 Rule 7 ought to be sparingly used so as to avoid a situation where it would appear as if the same is being used as a tool for appeal. The Court further held that an injunction may be discharged if it was obtained by concealing material facts, or if the circumstances of the suit have radically changed. 34.In the case of Robert Nyangaresi Onuonga v Mark Nyabayo Ratemo [2016] eKLR, the Court observed that Order 40 Rule 7 would only come into play if there has been a fundamental change of circumstances at the time the application is being made vis-à-vis the time when the order was made. Order 40 Rule 7 will also be applicable where an injunction is granted ex parte particularly where the injunction was obtained without full disclosure of all material facts. 35.The orders of status quo were agreed upon by the counsels for the parties herein including the counsel for the first plaintiff. They were not granted ex-parte. 36.The Plaintiffs have not placed any evidence before the Court to demonstrate that the status quo orders were obtained through concealment or non-disclosure of material facts. 37.Similarly, it has not been demonstrated that there has been a material change in the circumstances obtaining from the time the impugned orders were made to the time of the instant application. In the1st Plaintiffs’ Supporting affidavit sworn on 21st October 2025 in support of her application of even date and which application was 1 of the 3 applications that were compromised on the 24th February 2026, the Plaintiffs averred that the Defendants had been in possession of the suit property since 9th July 2025. The prevailing circumstances as at 24th February 2026 therefore were that the defendants were in possession. In the current application, it is deposed that the Defendants are in possession of the property hence the prayer for a mandatory injunction. From the material placed before the Court, it is not demonstrated any change of circumstances sufficient to justify a discharge, variation or setting aside of the status quo orders. The status obtaining at the time of filling the 9 Ruling ELCLC E108/2025

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instant application was the same status obtaining before the grant of the status quo orders on 24th February 2026. 38.The plaintiffs have therefore failed to demonstrate any of three circumstances spoken to in the case of Filista Chamaiyo Sosten and Robert Nyangaresi Onuonga referred to above in order to justify discharge of the status quo orders. 39.The second relief sought by the Plaintiffs is an order of temporary injunction restraining the Defendants from entering upon, remaining on, trespassing upon or otherwise dealing with the suit properties pending the hearing and determination of the application. 40.The law governing the grant of temporary injunction is set out under Order 40 Rule 1 of the Civil Procedure Rules 2010 which provides as follows: “Order 40, Rule Where in any suit it is proved by affidavit or otherwise— a) that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongfully sold in execution of a decree; or b) that the Defendant threatens or intends to remove or dispose of his property in circumstances affording reasonable probability that the Plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the Defendant in the suit, the court may by order grant a temporary injunction to restrain such act, or make such other order for the purpose of staying and preventing the wasting, damaging, alienation, sale, removal, or disposition of the property as the court thinks fit until the disposal of the suit or until further orders.” 41.The principles applicable in an application for an injunction were laid out in the celebrated case of Giella – Versus - Cassman Brown & Co Limited (1973) EA 358, where it was stated: “First an applicant must show a prima facie case with a probability of success, secondly an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable injury which would not be adequately compensated by an award of damages. Thirdly, if the court is in doubt, it will decide an application on the balance of convenience.” 10 Ruling ELCLC E108/2025

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42.In considering whether the Plaintiffs have established a prima facie case and demonstrated the likelihood of irreparable harm, the Court has to take into account the prevailing state of affairs on the suit properties. Although the Plaintiffs contend that they are the registered proprietors of the suit properties, the prevailing situation is that the Defendants are in occupation of the property. The Defendants maintain that the suit properties constitute their ancestral home and that the 3rd Defendant has no alternative place of residence. On their part, the Plaintiffs contend that they were dispossessed of the suit properties and denied access thereto, as a result of which they have been residing in alternative accommodation. In support of this assertion, the Plaintiffs have annexed receipts evidencing payments for such accommodation. 43.The court, in the case of Habiba Ali Mursal & 4 Others V Mariam Noor Abdi [2018] eKLR, on the purpose of an injunction stated thus: “The purpose of an injunction is to restrain that which is threatened to occur or is in the process of being undertaken in breach of one’s right. It is never meant to prevent what has already occurred. It will therefore be futile to grant injunctive orders”. 44.Similarly in Embu County Government v University of Embu [2022] KEELC 15529 (KLR) , the Court held thus: “An order for an injunction is granted to restrain a party from doing certain acts and where the acts sought to be restrained have already taken place, then the application cannot be granted as it will serve no purpose. Courts of law do not grant orders in vain” 45. The court, in an application for a prohibitory injunction, is usually called upon to prevent irreparable loss from happening. But in this case, the defendants are in possession of the suit land. An injunction is an equitable remedy and it is trite law that equity does not act in vain. The court cannot grant orders which will be unenforceable. In the circumstances the prayer 3 of the application stands moot. 46.The Plaintiffs further seek mandatory injunction to evict the Defendants from the suit properties and reinstatement of the Plaintiffs to the suit property. 47.The principles for the grant of a mandatory injunctions were succinctly stated in Kenya Breweries Limited & another v Washington O. Okeyo [2002] KECA 284 (KLR) wherein the Court of Appeal held that: 11 Ruling ELCLC E108/2025

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“A mandatory injunction can be granted on an interlocutory application as well as at the hearing, but, in the absence of special circumstances, it will not normally be granted. However, if the case is clear and one which the court thinks it ought to be decided at once, or if the act done is a simple and summary one which can be easily remedied, or if the defendant attempted to steal a march on the plaintiff ……. a mandatory injunction will be granted on an interlocutory application”. 48.The Court further posited that: “Also in Locabail International Finance Ltd. V. Agroexport and others [1986] 1 ALL ER 901 at pg. 901 it was stated:- “A mandatory injunction ought not to be granted on an interlocutory application in the absence of special circumstances, and then only in clear cases either where the court thought that the matter ought to be decided at once or where the injunction was directed at a simple and summary act which could be easily remedied or where the defendant had attempted to steal a march on the plaintiff. Moreover, before granting a mandatory interlocutory injunction the court had to feel a high degree of assurance that at the trial it would appear that the injunction had rightly been granted, that being a different and higher standard than was required for a prohibitory injunction.” 49.Further, the court in the case of Nation Media Group & 2 Others vs John Harun Mwau [2014] eKLR, observed “It is trite law that for an interlocutory mandatory injunction to issue, an applicant must demonstrate existence of special circumstances… A different standard higher than that in prohibitory injunction is required before an interlocutory mandatory injunction is granted. Besides existence of exceptional and special circumstances must be demonstrated …….” 50.In Embu County Government v University of Embu, supra, the Court stated that: “The law applicable shows clearly that a mandatory injunction is only sparingly issued and the court is required to satisfy itself that the case before it is clear, straightforward, even incontrovertible.” 51.In this instance, the Court is of the considered view that the circumstances of this case do not meet the high threshold required for an interlocutory mandatory injunction to be granted. The Plaintiffs contend that they are the registered proprietors of the suit properties having purchased it from KONGO ALI MWATIYA and MOHAMED HASSAN 12 Ruling ELCLC E108/2025

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MWATIYA. The Defendants, on the other hand, contend that the Plaintiffs acquired the suit properties fraudulently wherein they assert that the sale transaction, relied upon by the Plaintiffs, occurred when some of the aforementioned vendors were deceased. In light of the competing ownership claims over the suit properties, the allegations of fraud, the Court is convinced that the dispute herein is a clear, simple, straightforward and exceptional case warranting the grant of a mandatory injunction at this interlocutory stage. The contested issues of ownership require examination of evidence at trial and cannot be properly determined summarily. 52.Accordingly, the Plaintiffs application dated 19th May 2026 is found to be devoid of merit and is hereby dismissed. The costs of the application shall abide the outcome of the suit. 53.For the avoidance of doubt and pending the hearing and determination of the suit, the parties shall maintain the prevailing status quo and refrain from undertaking any acts that may occasion waste, destruction, alteration or interference with the suit properties or the structures thereon. The parties are directed to facilitate the expeditious hearing and determination of the suit. DATED, SIGNED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS AT KWALE THIS 30TH DAY OF SEPTEMBER 2026. HON. E.G NDERITU L J ELC KWALE In the presence of: Ms. Nzansa h/b for Ms. Kimani for the 1st Plaintiff Ms. Wambua h/b for Mr. Nyariki for the 1st and 3rd Defendants Ms. Halima C/A 13 Ruling ELCLC E108/2025

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