RULING
1. The respondent herein, Rose Jepngetich Micah, instituted a suit in the lower court to wit Kabarnet CMC ELC Case No. E004 of 2024 seeking judgment against the defendants in the suit who included the appellant/applicant herein for among other orders an order directing the Land Registrar Elgeyo Marakwet County to cancel the 3rd defendant’s title deed in respect of the parcel of land known as Elgeyo Marakwet/Koimur/894 (the 3rd defendant in the suit is the appellant/applicant herein). The respondent also sought an eviction order against the 3rd defendant from the parcel of land known as Elgeyo Marakwet/Koimur/98.
2. On 3rd April 2024, the respondent filed a notice of motion dated 2nd April 2024 in which he sought a temporary order of injunction to restrain the defendants by themselves their servants and/or agents from developing by way of construction of buildings, tilling, cultivating, selling, leasing and/or in any other way interferring with the parcel of land known as Elgeyo/Marakwet/Koimur/894 measuring approximately 4.0 hectares pending the hearing and determination of the application and the suit.
3. By a ruling delivered on 24th July 2024, the trial Magistrate allowed the application on the grounds that the suit property was in danger of being alienated or wasted by the respondents; that the applicant (now respondent) had shown that she was the one in possession of the suit property and that the applicant (now respondent) had shown that the suit property was sold to her by the 1st defendant.
4. Dissatisfied with the decision of the trial Magistrate, the 3rd defendant/respondent in the application before the lower court (now appellant/applicant), filed an appeal to this court against the decision of the lower court. Alongside the appeal, the appellant/applicant filed the notice of motion dated 29th July 2024 through which he seeks an order of maintenance of the status quo which obtained as at the time the suit at the lower court was filed pending hearing of the appeal.
5. The application is premised on the grounds that the appellant/applicant is the registered owner of the suit property; that the appellant/applicant is the one in possession of the suit property and that unless the orders sought are granted, the respondent may use the orders issued in her favour to evict the applicant from the suit property and/or to cite him for contempt of court yet he is the one in possession of the suit property.
6. Despite the application having been served on the respondent, she did not file a response within the time given by the court.
7. Although no response was placed in the court file or brought to the attention of the court, counsel for the applicant informed the court that he was served with a response by the respondent. Because the response, if any, was filed outside the time given by the court without the leave of the court and there being no explanation given for filing the response out of the time given by the court, the court expunged the response and directed that the application be heard as unopposed.
8. In arguing the application orally, counsel for the appellant/applicant relied on the grounds on the face of the application, the affidavit sworn in support of the application and the annextures thereto. He also relied on Order 42 Rule 6(1) of the Civil Procedure Rules. He submitted that the appellant/applicant had demonstrated that he would suffer substantial loss if the orders sought are not granted.
9. Counsel for the appellant/applicant, also submitted that the applicant had through photographs demonstrated that he is the one in possession and use of the suit property. He urged the court to allow the application as it was filed timeously and was not opposed.
Analysis and determination
10. I have carefully read and considered the circumstances leading to the filing of the application for stay of execution of the orders issued by the lower court particularly the contention/allegation that contrary to the determination of the trial court that it is the respondent who is in possession of the suit property, it is the appellant/applicant who is in possession of the suit property. I have also taken into account the apprehension by the appellant/applicant that the orders issued by the lower court may be used by the respondent to evict him from the suit property and/or to cite him for contempt of court thereby greatly prejudicing him.
11. In addressing the concerns raised by the appellant/applicant, I have read the order issued by the trial court and established that no order of eviction against the appellant/applicant was issued. Be that as it may, the order restrained the defendants/respondents, who include the appellant/applicant from developing by way of construction of buildings, tilling, cultivating, selling, leasing and/or in any other way interferring with the parcel of land known as Elgeyo/Marakwet/Koimur/894 measuring approximately 4.0 hectares pending the hearing and determination of the application and the suit.
12. The phrase from any other way interferring with the suit property may be construed to mean that the appellant/applicant was restrained from remaining in occupation of the suit property yet from the grounds on the face of the application for injunction, the plaintiff/applicant (now respondent) acknowledged that at the time she filed the suit, it was the appellant/applicant who was in possession of the suit property. In the plaintiff/respondent’s own words, the appellant/applicant had unlawfully and without any justifiable cause trespassed into the suit property and was in the process of building a structure thereon.
13. In the circumstances, I am satisfied that the appellant/applicant’s apprehension of the possibility of being cited for contempt of court arising out of the lower court’s decision on the issue of who between him and the respondent is in possession of the suit property is not farfetched. Consequently, I agree with the appellant/applicant that the order for maintenance of the status quo which obtained at the time the suit in the lower court was filed should issue pending the hearing and determination of the appeal herein.
14. The upshot of the foregoing is that the application dated 29th July 2024 has merit and is allowed in terms of prayer (c). The cost of the application shall abide the outcome of the appeal.
15. For avoidance of doubt, the appellant/applicant being the registered owner and the one in possession and occupation of the suit property, shall remain as the registered owner of the suit property and retain possession of the portion of the suit property he was in occupation of as at the time the suit in the lower court was filed pending the hearing and determination of the appeal but shall not effect any new developments on the suit property.
16. Orders accordingly.
Dated, signed and delivered Virtually this 14th day of January, 2025.
In the presence of:
- No appearance for the Appellant.
- Mr. Kurgat for the Respondent.