Blasio Otieno alias Francis Otieno Otieno v David Ojiro Odhiambo (suing as legal Rep. of the estate of the late Lazaro Onyango Mayende) & 3 others

2. The Appellant vide his supporting affidavit sworn on 22nd October ,2025 avers that the 1 st Respondent filed a suit against the appellant in MCELC.E010 OF 2024 before the Chief Magistrate Court in Siaya. 3. That an exparte judgment was delivered on 31 st December, 2024 the Honourable court allowed all the prayers sought in the plaint. That the Appellant was forced to make an application dated 28th March, 2025 seeking to set aside the exparte judgment which was delivered on the 3rd December, 2024 and the said application was later dismissed on the 20th August, 2025. 4. The Appellant contends that he has been cultivating the suit property for several years now and he was the registered owner of the suit property with a valid title deed and given the exparte judgment of the court, the Respondents are likely to subdivide and sale the land to a 3rd party. 5. That unless an order for temporary injunction is granted immediately restraining the Respondent’s. their agents and/or servants from sub-dividing or selling the or in any way interfering with his peaceful occupation of land parcel Central/ Alego/ Nyalgunga/1070 this instant Application and the intended appeal would be rendered nugatory, with immense prejudice and inconvenience to him as he shall not only stand condemned without a legitimate opportunity to ventilate his statutory right to appeal. SIAYA ELC APPEAL CASE NO. ELCLA E050/2025 (RULING) 2

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6. The Appellant asserts that the intended appeal raises triable issues with a high probability of success. He further contends that unless a temporary injunction is granted, he stands to suffer substantial and irreparable loss, as the substratum of the suit property will likely be dissipated or alienated prior to the determination of the appeal. 7. That this application has been made without unreasonable delay and it is in the interest of justice to grant the reliefs sought so that the intended appeal to the Court of Appeal can be determined with fair chance or preserving the status quo such that in the event of success in the appeal, the success would not be rendered useless. 1ST RESPONDENTS REPLYING AFFIDAVIT 8. The 1st Respondent avers that the Application dated 22 nd October, 2025 is malicious, vexatious, a gross abuse of the court process and judicial time, time wasting and totally without merits as there is already an active appeal case touching on the subject matter ELCLA/E050/2025. 9. That the Appellant has not shown or illustrated what prejudice he intends to suffer in the event the temporary orders of injunction is not issued or granted as the appeal case is still proceeding and as such the status quo over the suit property should prevail or maintain. 10. That 1st Respondent contends that there is no immediate threat to the suit property as the same is in the SIAYA ELC APPEAL CASE NO. ELCLA E050/2025 (RULING) 3

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name of the Respondent’s late grand-father one LAZARO ONYANGO MAYENDE being an ancestral land. 11. That him and all the beneficiaries to the estate of the late LAZARO ONYANGO MAYENDE have been residing on this ancestral land since time immemorial prior to and after adjudication period on 17 th August, 1978, have been born and raised there and thus issuing temporary orders of injunction at this stage over the property shall be an injustice and prejudicial to the family and beneficiaries to the estate of the late LAZARO ONYANGO MAYENDE. 12. It is averred that apart from residing on the ancestral land, the beneficiaries have been farming the land since time immemorial and thus issuing temporary orders of injunction at this stage over the property, shall be an injustice and prejudicial to them as they get their domestic produce from small scale farming from the land. 13. The 1st Respondent states that sometime on 3 rd October, 2023 having procured a green card dated 2 nd November, 2023 he discovered that during adjudication period specifically on 17th August, 1978 there was a clerical error made by the 3rd and 2nd Respondent where Blasio Otieno alias Francis Otieno Otieno was masquerading as the owner of the suit property and later secretly registered himself as the owner of the said suit property with issuance of a title deed on 5 th May, 2016. 14. The 1st Respondent contends that the Appellant’s registration was fraudulent and illegal. He further asserts that the Appellant has never been in physical possession SIAYA ELC APPEAL CASE NO. ELCLA E050/2025 (RULING) 4

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or occupation of the suit land neither prior to nor following the said registration and has indeed never set foot on the property. SUBMISSIONS 15. The application submissions. Both was parties dispensed complied by and way filed of their respective written submissions. APPELLANT’S SUBMISSIONS 16. The Appellant relied on established principles for granting an interlocutory/temporary injunction pending appeal, referencing Giella v. Cassman Brown [1973] EA 358, Mrao v. First American Bank of Kenya Ltd & 2 Others [2003] KLR 125 and Nguruman Limited v. Jan Bonde contending Nielsen that & the 2 Others appellant [2014] satisfied eKLR the three sequential pillars: establishing a prima facie case with probability of injury/damage success, and demonstrating showing that the irreparable balance of convenience tilts in his favour. 17. It was registered submitted proprietor of that land the Appellant parcel No. was the CENTRAL ALEGO/NYALGUNGA/1070 before the ex-parte judgment was delivered on 31st December, 2024 and he has been unlawfully denied access, use and enjoyment of his land, violating his constitutional right to property under Article 40 of the Constitution. SIAYA ELC APPEAL CASE NO. ELCLA E050/2025 (RULING) 5

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18. The Appellant highlighted that the 1st Respondent, following the delivery of the ex-parte judgment in the lower court, proceeded to register the suit property into his name, took possession and began cutting down trees on the land. 20. The Appellant submitted that land is a sensitive and emotive issue in Kenya, and it is inhumane and oppressive for the 1st Respondent to subject the Appellant to unnecessary court battles when the 1st Respondent was fully aware the Appellant was the registered owner prior to obtaining the ex-parte decree. 21The Appellant states he has demonstrated a likelihood of irreparable damage if the injunctive orders are denied, as his rights are actively threatened with violation by the 1 st Respondent by arguing that if no restraining orders are granted, the 1st Respondent will move, continue tilling, and/or transfer the suit property to third parties. 22The Appellant accordingly prayed that this Honourable Court allows the Appellant's application as prayed, with costs. 1ST RESPONDENT’S SUBMISSIONS 23The 1st Respondent analyzed the three-pronged test for temporary injunctions under Order 40 Rules 1 & 2 of the Civil Procedure Rules, Counsel cited Nguruman Limited v. Jan Bonde Nielsen & 2 Others [2014] eKLR, Pius Kipchirchir Kogo v. Frank Kimeli Tenai [2018] eKLR , and Robert Mugo wa Karanja v. Eco-Bank (Kenya) SIAYA ELC APPEAL CASE NO. ELCLA E050/2025 (RULING) 6

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Limited & Another [2019] eKLR to argue that the Appellant has failed on all parameters. On the pillar of a prima facie case, 1st Respondent submitted that a party must demonstrate a clear, recognizable right directly threatened by an unlawful invasion. He maintained that the Appellant has established no such right and is merely driven by ego to claim land that is not his, failing to discharge the burden of proof even on a balance of probabilities. 24In opposing the Notice of Motion application dated 22 nd October, 2025, the 1st Respondent submitted that the Appellant has failed to satisfy the essential legal thresholds for the grant of an interlocutory injunction pending appeal. At the outset, it was submitted that the he had not come to this Court with clean hands, characterizing the application as malicious, vexatious, incompetent and a gross abuse of judicial time. Relying on the equitable principle that equity frowns upon secrecy and underhand dealings as articulated in John Njiue Nyaga v. Nicholas Njiru Nyaga & Another [2013] eKLR and the Supreme Court of India decision in Dalpat Kumar & Anr. v. Prahlad Singh & Ors. (1991), 1st Respondent urged this Court to deny equitable relief to an applicant who lacks clean hands. 25Addressing the condition of preserving the subject matter, Appellant submitted that there is no imminent threat of destruction, waste or alienation over land parcel CENTRAL ALEGO/NYALGUNGA/1070. Counsel pointed SIAYA ELC APPEAL CASE NO. ELCLA E050/2025 (RULING) 7

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out that following the lower court’s ex-parte judgment delivered on 31st December, 2024 execution was already fully implemented, resulting in the suit property being registered back into the name of the 1 st Respondent’s late grandfather, LAZARO ONYANGO MAYENDE, as evidenced by the official search dated 24 th March, 2025. It was further submitted that the 1st Respondent and the beneficiaries of the estate have been residing on, born on and raised on the suit land since time immemorial, both prior to and after the adjudication period in August 1978. Consequently, the 1st Respondent argued that issuing injunctive orders at this stage would unjustifiably dispossess the rightful estate beneficiaries and occasion grave prejudice. 26The 1st Respondent detailed the factual background of the dispute, highlighting that an official green card search obtained in 2nd November 2023 revealed that the ancestral land belonged to the late LAZARO ONYANGO MAYENDE. Counsel asserted that during the adjudication period in 17th August 1978, a clerical error by the Land Adjudication Officer permitted the Appellant, BLASIO OTIENO OTIENO, to masquerade as the owner and secretly register himself under entries 1, 2 and 3 in 5 th May 2016 without any color of right. 27Stressed before this Court was the contention that the Applicant is a complete stranger to the suit land which remains ancestral property housing the 1 st Respondent’s family Luo traditional burial site (gunda/lay). Counsel SIAYA ELC APPEAL CASE NO. ELCLA E050/2025 (RULING) 8

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vehemently denied the Appellant’s claims of occupation, asserting that the Appellant has never enjoyed physical possession, occupation, or cultivation of the suit land and has indeed never set foot on the property. 28Finally, regarding irreparable injury, 1 st Respondent submitted that the Appellant has failed to demonstrate any injury that cannot be adequately compensated by an award of damages or any harm that would render the pending appeal useless if the injunction is refused. 1 st Respondent concluded by urging that the Notice of Motion application dated 22nd October, 2025 lacks merit, constitutes forum shopping and ought to be dismissed with costs to the 1st Respondent pursuant to Section 27 of the Civil Procedure Act. ANALYSIS AND DETERMINATION 29 I have carefully considered the Notice of Motion, Supporting and Replying affidavits and the written submissions of both parties. 30At the outset, this Court must address a procedural misstep in the framing of the Appellant’s application. The Appellant’s Notice of Motion dated 22 nd October 2025 expressed the relief sought as temporary injunction pending an "intended appeal to the Court of Appeal." However, the substantive matter currently pending before this Court is ELCLA No. E050 of 2025, being an active appeal against the decision of the Chief Magistrate’s Court at Siaya in MCELC/E010/2024. The reference to an SIAYA ELC APPEAL CASE NO. ELCLA E050/2025 (RULING) 9

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intended appeal to the Court of Appeal is clearly erroneous. 31Rather than striking out the application on a mere technical misdescription and in the interest of justice, this Court shall treat the application as one seeking temporary injunctive relief pending the determination of the active appeal before this Court, ELCLA No. E050 of 2025 and determine the Notice of Motion on its merits. 32The main issues for determination are therefore: i. Whether the Appellant has satisfied the conditions for the grant of a temporary injunction pending the hearing and determination of this appeal. ii. What orders should issue in the circumstances of this appeal iii. Who shall bear the costs of this application. 33. The jurisdiction for the grant of temporary injunction pending appeal is donated under Order 42 Rule 6 (6) of the Civil Procedure Rules, which states as follows: Notwithstanding anything contained in subrule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with. 34. The proviso touching on compliance with procedure for instituting an appeal has been complied as there is SIAYA ELC APPEAL CASE NO. ELCLA E050/2025 (RULING) 10

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already an active appeal and which was admitted by this court on 17.09.2025 "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." 35. The condition set in order 42 rule 6(6) for the grant of temporary injunction pending Appeal is that firstly, the court must be exercising its appellate jurisdiction and SIAYA ELC APPEAL CASE NO. ELCLA E050/2025 (RULING) 11

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secondly, the procedure for instituting an appeal must have been complied with. 36. In the case of Patricia Njeri & 3 others v National Museums of Kenya [2014] eKLR the court gave the following guidance on grant of temporary injunctions pending appeal: a. An order of injunction pending appeal is a discretionary matter which will be exercised against an applicant whose appeal is frivolous. (Also see case of Venture Capital & Credit Limited v Consolidated Bank of Kenya Ltd Civil Application No Nairobi 349 of 2003 (174 of 2003 UR) b. The discretion should be refused where it would inflict great hardship than it would avoid c. The applicant must show that to refuse the injunction would render the appeal nugatory d. The court should also be guided by the principles in Giella v Cassman Brown & Co Ltd. 37. In determining whether to grant an injunction pending appeal Courts are ordinarily guided by the classic three- pronged test established in Giella vs Cassman Brown & Co Ltd 1973 EA 358 a) First, the applicant must show a prima facie case with a probability of success. b) Secondly, an interlocutory injunction will not normally be granted unless the applicant might otherwise suffer irreparable harm which would SIAYA ELC APPEAL CASE NO. ELCLA E050/2025 (RULING) 12

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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. 38. 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 a case which, on the material 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.” 39. It is clear that the judgement the subject of this appeal was rendered exparte. While it is alleged that before the judgement the suit property was in the name of the Appellant, the respondent states that the decree has since been executed and pursuant to the same the suit property is now registered under the name of LAZARO ONYANGO MAYENDE. The official land search dated 24th March 2025 which has been produced demonstrates that title to parcel CENTRAL ALEGO/ NYALGUNGA/ 1070 is currently registered under the said LAZARO ONYANGO MAYENDE. SIAYA ELC APPEAL CASE NO. ELCLA E050/2025 (RULING) 13

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40. Applying the test in Mrao Ltd (supra), the Appellant application would fail the test for a prima facie case. 41. The loss was aptly articulated in Paul Gitonga Wanjau v. Gathuthi Tea Factory Company Ltd & 2 Others [2016] eKLR, where the Court cited Halsbury’s Laws of England as follows: "First, that the injury is irreparable and second, that it is continuous. By the term irreparable injury is meant injury which is substantial and could never be adequately remedied or atoned for by damages, not injury which cannot possibly be repaired and the fact that the plaintiff may have a right to recover damages is no objection to the exercise of the jurisdiction by injunction, if his rights cannot be adequately protected or vindicated by damages." 42. On the test of irreparable loss if the injunction is not granted, it has been urged since the judgement the applicant has been unlawfully denied access, use and enjoyment of his land. I had no evidence before court of his occupation. This is important considering the respondents assertion that the applicant has never been in possession. His complaint is that after the ex-parte judgment the responded proceeded to register the suit property into his name, took possession and began cutting down trees on the land. There was nothing to stop the respondent from effecting the decree and use the land. SIAYA ELC APPEAL CASE NO. ELCLA E050/2025 (RULING) 14

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43. However, the Appellant is anxious that the suit may be disposed to 3rd parties. I think this apprehension is worthy consideration. I say so because the official land search dated 24th March 2025 confirms that implementation of the lower court judgment was fully effectuated, resulting in the title reverting to and being registered in the estate of the late LAZARO ONYANGO MAYENDE. The land essentially is not in the control of the appellant. This means the danger of it being disposed without his knowledge could occur. The appellant’s apprehension is therefore justified and this could be a threat during the pendency of the appeal in the absence of the intervention of the court. 44. The court must look at the appeal not being rendered nugatory. The court of appeal in the case of Mukuma vs Abuoga (1988) KLR 645 stated thus; “Substantial loss is what has to be prevented by preserving the status quo because such loss would render the Appeal nugatory.” 45. The above is pertinent especially where the subject matter is removed from the reach of the court hindering the execution of the decree of the court on appeal should the trial court decision be set aside. 46. On the third limb of the Giella v. Cassman Brown test, the Court must consider convenience lies. The requirement were where governing succinctly SIAYA ELC APPEAL CASE NO. ELCLA E050/2025 (RULING) the balance principles expounded of on this in Pius 15

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Kipchirchir Kogo v. Frank Kimeli Tenai [2018] eKLR, where the Court observed: “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 defendants if an injunction is granted but the suit is ultimately dismissed. Although it is called balance of convenience it is really the balance of 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 defendants. Should the inconvenience be equal, it is the plaintiffs who suffer? In other words, the plaintiffs have to show that the comparative mischief from the inconvenience which is likely to arise from withholding the injunction will be greater than which is likely to arise from granting it.” 47. Applying the above test, the balance of convenience would lie in maintaining the status quo. Based on the depositions title to parcel CENTRAL ALEGO/ NYALGUNGA/ 1070 is currently registered under the LAZARO ONYANGO MAYENDE and the 1st Respondent’s SIAYA ELC APPEAL CASE NO. ELCLA E050/2025 (RULING) 16

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seems to be in physical occupation and which is pursuant to a valid decree of the lower court. 48. It is a well-established principle that a court possesses the inherent jurisdiction to order the maintenance of the status quo on its own motion, even where not expressly prayed for by the parties, whenever the circumstances of the case demand the preservation of the subject matter. This was outlined in the case of Thugi River Estate Limited & another Vs National Bank of Kenya Limited & amp; 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 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. SIAYA ELC APPEAL CASE NO. ELCLA E050/2025 (RULING) 17

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It is intended to also freeze the state of affairs.’ 49. To therefore maintain the integrity of the pending appeal, the Court must ensure that the subject matter remains preserved as it currently exists. At present, the legal title to parcel CENTRAL ALEGO/NYALGUNGA/1070 rests under LAZARO ONYANGO MAYENDE, while the 1st Respondent’s family holds actual physical occupation. Maintaining the status quo of both the Land Register and physical possession pending the outcome of the appeal guarantees that the property is protected from alienation or disruption without prejudicing the rights of either party. 50. The Appellant’s Notice of Motion dated 22 nd October, 2025, is hereby disposed in the following terms; 51. An order of status quo is hereby issued preserving the state of affairs as follows: i. Pending hearing and determination of this appeal the Land Register in respect of parcel CENTRAL ALEGO/NYALGUNGA/1070 shall remain unchanged in the name of the estate of the late LAZARO ONYANGO MAYENDE; ii. An order of inhibition is hereby issued restricting the Land Registrar in charge of Alego Nyalgunga from registration of any disposition in the register of parcel CENTRAL ALEGO/NYALGUNGA/1070. iii. The actual physical occupation of the suit property by the 1st Respondent’s family shall be maintained. SIAYA ELC APPEAL CASE NO. ELCLA E050/2025 (RULING) 18

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iv. Costs of this application shall abide the outcome of the main appeal. It is so ordered Dated at Siaya this 1st Day of October 2026 HON. JUSTICE A. E. DENA JUDGE 01/10/2026 Ruling delivered virtually through Microsoft Teams Video Conferencing Platform in the Presence of: Mr. Ochanyo for Respondent Ms. MC Ogot for Appellant Court assistant: Victor Bwire SIAYA ELC APPEAL CASE NO. ELCLA E050/2025 (RULING) 19

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