1. Before this Court is the Notice of Motion dated 17th July 2026 brought by the Appellant/Applicant seeking, inter alia, orders that:
a) Spent
b) Spent
c) The interested party do forthwith release the keys to the said house to Richline Atieno Ondiko or her care taker Maurice Otieno to enable him take care of the animals and property therein
d) The Officer Commanding Station (OCS), Rangwe Police Station, provide security at the premises situate in Land parcel no LR Kagan/Kamenya/113 and take a further comprehensive inventory, documents and items found within .
e) costs of this application be in the cause.
2. The application is premised on the grounds appearing on its face and the supporting affidavit sworn by the Appellant. The Applicant deposes that she is the registered proprietor of the suit premises pursuant to Judgement delivered in Homabay CMELC number E051 OF 2022; that she is the real owner and employer of Maurice Otieno, the caretaker ,and that, on 15/5/2026 the Respondent unlawfully locked the house and denied the caretaker access to the premises.
3. The Applicant further deposes that at the time the house was locked there were inside five goats, twelve chickens, one cow and three German Shepherd dogs which, according to her, were left without food and water. She contends that unless the orders sought are granted, she will continue to suffer loss while the animals remain confined in the house. She further avers that the Respondent has continued to interfere with her peaceful occupation and enjoyment of the property.
4. The application arises from the decision of the Chief Magistrate's Court in Homa Bay CMELC Case No. E051 of 2026 wherein the learned trial magistrate struck out the Applicant's claim for injunctive relief upon finding that the dispute related to matrimonial property and consequently fell outside the jurisdiction of that court.
5. Aggrieved by that finding, the Applicant lodged the present appeal challenging the trial court's assumption that the dispute concerns matrimonial property and simultaneously filed the instant application seeking interlocutory mandatory orders.
6. The Respondent opposes the application and maintains that the orders sought are unwarranted and would effectively determine the appeal before it is heard.
Issue for Determination
7. The sole issue for determination is whether the Applicant has satisfied the legal threshold for the grant of an interlocutory mandatory injunction pending the hearing and determination of the appeal.
Determination
8. The jurisdiction of this Court to grant interlocutory relief pending appeal is not in doubt. Such jurisdiction, however, must be exercised cautiously and sparingly, and in accordance with established legal principles.
9. The relief sought by the Applicant is not merely prohibitory but mandatory. She seeks orders compelling the Respondent to surrender possession of the keys, grant access to the residential house, permit entry by third party caretakers and require police assistance in enforcing those orders.
10. It is trite noting that a temporary mandatory injunction is not a remedy that is easily granted. It is an order that is ordinarily passed in circumstances which are clear and the prima facie materials clearly justify a finding that the status quo has been altered by one of the parties to the litigation and the interests of justice demand that the status quo ante be restored by way of a temporary mandatory injunction.
11. It may also be granted where the respondent attempts to forestall an interim or temporary injunction, such as where, on receipt of notice that an interim or temporary injunction is about to be applied for, the respondent hurries on the work in respect of which complaint is made so that when he or she receives notice of an interim or temporary injunction it is completed. Court should be careful though not grant an injunction that will have the effect of virtually deciding the suit without a trial (see Cayne v. Global Natural Resources PLC [1984] I All ER 225 ).
12. Grant of an interlocutory mandatory injunction is in the discretion of the Court, taking into consideration the facts and circumstances of a particular case and more specifically the extent of injury or inconvenience caused to the applicant by the conduct of the respondent and the extent of injury or hardship that will be caused to the respondent by the grant. It is always open to the Court to grant an alternative remedy such as security for costs or damages instead of a mandatory interlocutory injunction. The question for consideration is, whether it also applies to cases of this nature, whether on principle or of any authority.
13. In Nottingham Building Society v. Eurodynamics Systems plc, [1993] FSR 468 , Chadwick J laid down tests for the granting of mandatory interlocutory injunctions, thus;
‘ ’In my view the principles to be applied are these. First, this being an interlocutory matter, the overriding consideration is which course is likely to involve the least risk of injustice if it turns out to be ‘wrong’........Secondly, in considering whether to grant a mandatory injunction, the court must keep in mind that an order which requires a party to take some positive step at an interlocutory stage, may well carry a greater risk of injustice if it turns out to have been wrongly made than an order which merely prohibits action, thereby preserving the status quo . Thirdly, it is legitimate, where a mandatory injunction is sought, to consider whether the court does feel a high degree of assurance that the plaintiff will be able to establish his right at a trial. That is because the greater the degree of assurance the plaintiff will ultimately establish his right, the less will be the risk of injustice if the injunction is granted. But, finally, even where the court is unable to feel any high degree of assurance that the plaintiff will establish his right, there may still be circumstances in which it is appropriate to grant a mandatory injunction at an interlocutory stage. Those circumstances will exist where the risk of injustice if this injunction is refused sufficiently outweigh the risk of injustice if it is granted.
14. The other factor that is relevant is the extent to which the determination of the application at an interlocutory stage will amount to a final determination of the rights and obligations of the parties.
15. The point was addressed in NWL Limited v. Woods [1979] WLR 1294 . Lord Diplock said there that cases where the grant or refusal of an injunction at the interlocutory stage would, in effect, dispose of the action finally in favour of whichever party was successful in the application,were exceptional “ but when they do occur they bring into the balance of convenience an important additional element .” He concluded:
Where,however, the grant or refusal of the interlocutory injunction will have the practical effect of putting an end to the action because the harm which will have been already caused to the losing party by its grant or its refusal is complete and of a kind for which money cannot constitute any worthwhile recompense, the degree of likelihood that the plaintiff would have succeeded in establishing his right to an injunction if the action had gone to trial, is a factor to be brought into the balance by the judge in weighing the risks that injustice may result from his deciding the application one way rather than the other.
16. The Court is also required to demand a heightened level of proof. In Morris v. Redland Bricks Ltd, [1970] AC 652, [1969] 2 WLR 1437, [1969] 2 All ER 576 , Lord Upjohn held that the requirement of proof is greater for a party seeking a quia timet injunction than otherwise. He said: “ A mandatory injunction can only be granted where the plaintiff shows a very strong probability upon the facts that grave danger will accrue to him in the future.” As Lord Dunedin said in 1919 it is not sufficient to say “ timeo ” (see Attorney-General for the Dominion of Canada v. Ritchie Contracting and Supply Co Ltd [1919] AC 999 ). “It is a jurisdiction to be exercised sparingly and with caution but in the proper case unhesitatingly” and that “[T]he court must be careful to see that the defendant knows exactly in fact what he has to do and this means not as a matter of law but as a matter of fact, so that in carrying out an order he can give his contractors the proper instructions.” The applicant must therefore not only aver but must also prove that what is going on is calculated to infringe his or her rights.
17. Bearing those principles in mind, it is necessary to determine whether in the case at hand, the court is justified in granting this remedy.
18. Mandatory injunctions are ordinarily remedies in finality. The question before this court is whether in strictness a mandatory injunction can properly be made.
19. It would appear that if a mandatory injunction is granted at all on an interlocutory application, it is granted only to restore the status quo and not granted to establish a new state of things, differing from the state which existed at the date when the suit was instituted.
21.The grant of mandatory injunctions is discretionary which must be exercised with caution so as to avoid practically prejudging the suit, and occasioning other practical inconveniences of a lesser degree.
22. In exercising same the court will consider the facts and circumstances of a particular case and more particularly:
a) any delay or laches on the part of the applicant,
b) the extent of injury or inconvenience caused or posed to the applicant by the conduct of the respondent and ,
c) the extent of injury or hardship that will be caused to the respondent by the grant.
d) In lieu , it is always open to the Court to grant the interlocutory mandatory injunction or alternative relief in the circumstances
20. The purpose of such an injunction is to improve the chances of the court being able to do justice after a determination of the merits at the trial. At the interlocutory stage, the court must therefore assess whether granting or withholding an injunction is more likely to produce a just result at the end of the trial. If there is a serious issue to be tried and the applicant could be prejudiced by the acts or omissions of the respondent pending trial and the cross-undertaking in damages would provide the respondent with an adequate remedy if it turns out that his or her freedom of action should not have been restrained, then an injunction should ordinarily be granted (see National Commercial Bank Jamaica Ltd v. Olint Corp Ltd (Jamaica) [2009] 1 WLR 1405 ).
21. The basic principle is that the court should take whichever course seems likely to cause the least irremediable prejudice to one party or the other. This is an assessment in which, as Lord Diplock said in American Cyanamid Co v. Ethicon Ltd [1975] AC 396 at page 408.
22. In P hilip H. Petit; Equity and the Law of Trusts 4 th edition Butterworths at page 401 , the author states that there is no distinction between granting a prohibitory or mandatory injunction. Every injunction requires to be granted with care and caution but it is not more needed in one case than the other. The court will not hesitate to grant a mandatory injunction in an appropriate case but whenever it does so it must be careful to see that the defendant knows exactly what he has to do, not as a matter of law but as a matter of fact.
23. Binod Mohan Prasad in Mulla The Code of Civil Procedure seventeenth edition, at pages 254 to 257, states that courts can in exceptional cases grant a mandatory injunction on an interlocutory application. Such injunctions can be issued only in case of extreme hardship and compelling circumstances, mostly in those cases when the status quo existing on the date of the institution of the suit is to be restored. He cites a Calcutta case, Indian Cable Co Ltd V Sumira Chackraborty AIR 1985 Cal 248 , where the tenant was in peaceful possession, but had been wrongfully thrown out. His possession was restored on an interlocutory application. In other words, if it has to be granted at all on interlocutory application, a mandatory injunction is granted mostly to restore the status quo , and not to establish a new state of things.
24. According to the author, the grant or refusal of an interlocutory mandatory injunction ultimately rests in the sound judicial discretion of the court to be exercised in the light of the facts and the circumstances of each case. For instance, when a grant of a mandatory interlocutory injunction means granting substantially the relief claimed in the main suit, the court will be very slow and circumspect in the matter of granting any such prayer. This should be after notice to the other party and after hearing both parties.
25. The foregoing principles have, to an extent, been applied by courts in this region.
26. In Despina Ponticos [1975] 1 EA 38 the appellate court upheld a judgment of the High Court which had granted a mandatory injunction on grounds that the defendant had no defence. The appellate court stated that courts will not order mandatory injunctions which the defendant may be incapable of complying with. Secondly, the defendant must be capable to comply with such an order. In granting such an order the court must take into account the conduct of both parties. Also see Makubuya E. William t/a Polla Plast V Umeme Miscellaneous Application No. 234/2012, Madrama J.
27. Similarly, the Court of Appeal in Kenya Breweries Ltd & Another v Washington O. Okeyo [2002] 1 EA 109 reiterated that interlocutory mandatory injunctions are granted sparingly and only in the clearest of cases.
28. Applying those principles to the present case, this Court notes that the appeal before it challenges the ruling of the trial court declining jurisdiction upon finding that the dispute concerns matrimonial property. Whether that finding was correct is the central issue that will be determined during the hearing of the appeal.
29. Without prejudicing the determination of the pending Appeal before this court , the Lower court observed that the parties were divorced and the Appellant then sort for restraining orders against the Respondent
30. However, the lower court declined jurisdiction based on the fact that it would been tantamount to determining the issue of ownership of the matrimonial house and denying the respondent access to the home which issue had not placed before the court for determination .
31. Though in her affidavit the Applicant states that issue of ownership was determined in Homabay Elc case number E051 of 2022 vide a judgment dated 9 th February,2026 the court finds that the lower court never made any such determination and downed its tools .I have also looked at the title deed I note that the same has three names on it , which implied her ownership is not exclusive, no final determination has been made on this issue as well.
32. The mandatory orders sought would require the Respondent to surrender possession of the keys to the residential house and restore the Applicant's access and occupation pending appeal. These are substantive orders affecting possession of the suit property which may , of course determine the rights of the parties with finality
33. The court also notes that the Applicant is not resident in the country and basically she relies on information given to her by a caretaker, and it may be difficult for the court to tell the actual state of affairs that subsisted as at that time of the alleged takeover.
34. If granted, the orders would substantially alter the prevailing status quo and effectively confer upon the Applicant the very relief she seeks before the appeal is heard. Such orders would inevitably prejudice the determination of the appeal and, in practical terms, determine significant aspects of the dispute before the appellate Court has pronounced itself on the jurisdictional question.
35. The Court is therefore enjoined to exercise considerable restraint in granting such far-reaching interlocutory relief.
36. The Applicant has relied heavily on the allegation that the Respondent locked the residential house while inside were five goats, twelve chickens, one cow and three German Shepherd dogs which were allegedly left without food and water.
37. While this Court takes allegations concerning the welfare of animals seriously and condemns any conduct that unnecessarily subjects animals to suffering, the chronology of events disclosed in the application presents considerable difficulty.
38. The Applicant states that the alleged locking of the house occurred in May 2026. The present application was filed on 17th July 2026 and is being determined thereafter. The allegation that the animals have remained inside the house without food and water "for days" cannot, in the circumstances, sustain the urgency advanced by the Applicant.
39. Had the animals remained confined without food or water for the entire intervening period, the Court would reasonably expect evidence demonstrating their condition, intervention by the relevant authorities, veterinary reports, photographs, police reports or reports made to the relevant livestock or animal welfare agencies. No such material has been placed before the Court.
40. Conversely, if the animals were rescued, removed or otherwise attended to before the determination of this application, the emergency relied upon by the Applicant would no longer subsist. In either event, the material placed before the Court does not establish the exceptional circumstances necessary to justify the grant of an interlocutory mandatory injunction.
41. The Court is equally mindful that allegations of animal cruelty are matters capable of immediate intervention by the appropriate enforcement agencies and cannot, without sufficient evidential foundation, justify granting mandatory orders that would substantially determine the rights of the parties pending appeal.
42. Having considered the material placed before it, this Court is not persuaded that this is one of those rare and exceptionally clear cases contemplated in the authorities where an interlocutory mandatory injunction ought to issue.
43. The Court further finds that the Applicant has not demonstrated exceptional circumstances warranting the grant of orders that would alter the existing state of affairs before the appeal is heard and determined.
44. It should also be noted that an injunctive relief is discretionary which is based on sound legal principles ,one of them being that a deserving party must not be guilty of laches ,and to which the Applicant is a guilty party. No explanation has been made for the delay of two (2) months in coming to this court. .
45. The other aspect that the court considers is whether damages will suffice to be awarded, that is subject to the court’s determination.
46. There are also conflicting averments with the Applicant, on one hand, saying the house was locked denying her caretaker access thereto and interfering animals which are in dire need of food.
47. I have looked at the affidavit filed by the affidavit sworn by the Applicant and the court has noted it is deviative in two aspects :
a) It does not disclose source of information
b) It is not mentioned at the tail end of the application that is supportive
48. Affidavit evidence in civil matters is regulated by Order 19 of the CPR. The rules in this order give the parameters within which affidavit evidence is acceptable. It states under Order 19 rule 3 (1) of the CPR "Affidavits shall be confined to such facts as the deponent is able of his or her own knowledge to prove, except on interlocutory applications, on which statements of his or her belief may be admitted, provided that the grounds thereof are stated".
49. In the case of Premchard Raichard v Quarry Services Ltd (1969) EA 514 at 517 where Spry JA as he then was stated thus:
"lt has repeatedly been said by this court that affidavit based on information must disclose the source of information (see standard- Goods Corporation Ltd vs. Harakhchard Nahus & Co. (1950) 17 EACA 9). On this ground alone the Judge would have been entitled to refuse to act on the affidavit, this is not merely a matter of form, but goes to the essential value of the affidavit. It is clear from the above passage that disclosing the source of information of facts deponed to information, and giving ground of belief where facts are deponed to on belief and distinguishing between those facts which are deponed to on information, belief and knowledge of the deponent are fundamental requirements in the drafting of affidavit. An omission in any of them goes to the essential root of the affidavit. It renders the affidavit incurably defective".
50. Similarly, in the case of KCB Bank Uganda Limited v Kalema Deus HCMA No. 70412018 Justice Wabwire stated that: - non-disclosure of the source of information is however a breach of the law - (Order l9 rule 3 CPR) and has been held to be a fundamental requirement in drafting an Affidavit, with the consequence that omitting to disclose the source of information goes to the foundation of the Affidavit thus rendering it incurably defective
51. Therefore, an omission in the disclosure of the source of information of facts deponed and giving ground of belief, where facts are based on belief ,goes to the essential root of the affidavit. It renders the Affidavit incurably defective, unreliable and without evidential value. Failure to disclose the source of information is therefore a breach of law.
52. I find that the affidavit sworn by the Applicant is a candidate for striking out for fundamental breach but nonetheless, in the broad interest of justice the court will still consider the said affidavit, as failure to which will occasion injustice to an innocent party
53. However ,the other saving grace is that the respondent has also not raised any issue with the Applicants affidavit and has gone ahead to make a reply thereto
54. I find that that no prejudice will be occasioned in relying on the affidavit as part of evidence but as stated by the superior court the probative value thereof is diminished
55. Bosire Ag. J.A. in his judgment in the case of East African Packing Industries Limited v. Zoeb Alibhai, Civil Appeal No. 124 of 1996, (unreported) said this:
“To my mind the sources of information and grounds of belief are primarily essential for purposes of veracity. Consequently, a failure by a deponent to disclose with particularity the sources of the information he has deposed to has the effect of weakening the probative value of the information and even render it worthless. It does not, in my view, render the relevant paragraph defective.”
56. In the case of Anastacia Kioko Mululu & Another t/a Archer & Wilcock Advocates v Winfred Wanjama Warui t/a Wanjama & Associates (2012) eKLR. , Havelock J, in striking out certain paragraphs of an affidavit sworn by an Advocate on behalf of the defendant in the matter, stated:
“ 10. To that end, I would strike out paragraphs 4, 5, 6, 10, 11, 12, 18, 23, 24, 26, and 27 based on Order 10 Rule 3 of the Civil Procedure Rules 2010 on the grounds that either those are not within the deponent’s personal knowledge or that she has failed to disclose her source of information. I would also strike out paragraphs 19, 29, and 32 of the Replying Affidavit on the grounds that I feel that these 3 paragraphs are scandalous, irrelevant or oppressive.”
57. In the court of Appeal case Simon Kitavo Nduto & another v Benson Owenga Anjere [1997] KECA 404 (KLR) the Judges observed thus :
“ It is well settled that where an affidavit is made on information it should not be acted upon by any court unless the source of information is specified. But what if the affidavit contains merely a correct statement of law like in the instant appeal?
It was open for Miss Janmohamed to seek to cross-examine the respondent and obtain the name of the advocate who so advised the respondent but striking out such a paragraph would be too drastic more so when it only set out the law which need not have been set out. We understand, however, that as a result of the learned judge’s order to disclose the name of the advocate, the respondent has done so.”
58. On the hand the respondent, who alleges to be in possession ,denies evicting the applicant ; he goes on to state that the Respondent is using concocted allegations of ‘’locked doors ‘’ and ‘’ unfed animals’’as a Trojan Horse to obtain mandatory injunctive orders; that under Section12(1) of the matrimonial Property Act , a spouse cannot be evicted without an express court order , and lastly , that the appellant has come this court with unclean hands by failing to serve the primary appeal documents .
59. I find that in the case though parties have laid contrasting claims, it would appear that the respondent has been in possession of the so called matrimonial home ,and the applicant is neither occupying, nor accessing the same ,but both are laying claim thereto. Though the Applicant says and insists that house is locked it is not disputed that she resides abroad and her information on eviction is basically on information given by a third party , whose affidavit has not been attached to the application,of course with leave of this court.
60. The other reason why the application is how it is framed. It refers to an interested party who is unknown in the proceedings therefore the order cannot be made against to the suit.
60. In my opinion, considering the nature of the applicant’s prayers in the main Appeal, if there is any damage caused by the respondents’ activities, it is atonable in damages. In the event that the applicant is successful in establishing her rights in the Appeal, the orders prayed for would be an adequate solace to atone the injuries claimed.
61. Preserving the status quo would be preserving the situation as it is, that is the respondent continuing to occupy and use or develop the land pending the determination of the rights of the parties in the Appeal
62. I find the status quo to be in favour of the respondent who is in actual possession of the suit land rather than the applicant. As such, restraining the respondents would alter the status quo rather than maintain it.
63. It is appropriate that the parties preserve the property pending the determination of the appeal.
Disposition
25. Consequently, the Notice of Motion dated 17th July 2026 is hereby dismissed.
26. For the avoidance of doubt, the parties shall maintain the prevailing status quo obtaining as at the date of this ruling pending the hearing and determination of the appeal.
27. This means the Respondent should not in any way part with possession or do anything that dimishes the value of the said property until the Appeal is determined
28. Costs of the application shall abide the outcome of the appeal
Ruling delivered and dated at Homabay via teams online platform on this 31 st day of July ,2026
In the presence of ;
1.Oyala for Nyarige for the Respondent
2. Kimberly for Obwanda for the Applicant
2. Court Assistant- Bosibori
a) Spent
b) Spent
c) The interested party do forthwith release the keys to the said house to Richline Atieno Ondiko or her care taker Maurice Otieno to enable him take care of the animals and property therein
d) The Officer Commanding Station (OCS), Rangwe Police Station, provide security at the premises situate in Land parcel no LR Kagan/Kamenya/113 and take a further comprehensive inventory, documents and items found within .
e) costs of this application be in the cause.
2. The application is premised on the grounds appearing on its face and the supporting affidavit sworn by the Appellant. The Applicant deposes that she is the registered proprietor of the suit premises pursuant to Judgement delivered in Homabay CMELC number E051 OF 2022; that she is the real owner and employer of Maurice Otieno, the caretaker ,and that, on 15/5/2026 the Respondent unlawfully locked the house and denied the caretaker access to the premises.
3. The Applicant further deposes that at the time the house was locked there were inside five goats, twelve chickens, one cow and three German Shepherd dogs which, according to her, were left without food and water. She contends that unless the orders sought are granted, she will continue to suffer loss while the animals remain confined in the house. She further avers that the Respondent has continued to interfere with her peaceful occupation and enjoyment of the property.
4. The application arises from the decision of the Chief Magistrate's Court in Homa Bay CMELC Case No. E051 of 2026 wherein the learned trial magistrate struck out the Applicant's claim for injunctive relief upon finding that the dispute related to matrimonial property and consequently fell outside the jurisdiction of that court.
5. Aggrieved by that finding, the Applicant lodged the present appeal challenging the trial court's assumption that the dispute concerns matrimonial property and simultaneously filed the instant application seeking interlocutory mandatory orders.
6. The Respondent opposes the application and maintains that the orders sought are unwarranted and would effectively determine the appeal before it is heard.
Issue for Determination
7. The sole issue for determination is whether the Applicant has satisfied the legal threshold for the grant of an interlocutory mandatory injunction pending the hearing and determination of the appeal.
Determination
8. The jurisdiction of this Court to grant interlocutory relief pending appeal is not in doubt. Such jurisdiction, however, must be exercised cautiously and sparingly, and in accordance with established legal principles.
9. The relief sought by the Applicant is not merely prohibitory but mandatory. She seeks orders compelling the Respondent to surrender possession of the keys, grant access to the residential house, permit entry by third party caretakers and require police assistance in enforcing those orders.
10. It is trite noting that a temporary mandatory injunction is not a remedy that is easily granted. It is an order that is ordinarily passed in circumstances which are clear and the prima facie materials clearly justify a finding that the status quo has been altered by one of the parties to the litigation and the interests of justice demand that the status quo ante be restored by way of a temporary mandatory injunction.
11. It may also be granted where the respondent attempts to forestall an interim or temporary injunction, such as where, on receipt of notice that an interim or temporary injunction is about to be applied for, the respondent hurries on the work in respect of which complaint is made so that when he or she receives notice of an interim or temporary injunction it is completed. Court should be careful though not grant an injunction that will have the effect of virtually deciding the suit without a trial (see Cayne v. Global Natural Resources PLC [1984] I All ER 225 ).
12. Grant of an interlocutory mandatory injunction is in the discretion of the Court, taking into consideration the facts and circumstances of a particular case and more specifically the extent of injury or inconvenience caused to the applicant by the conduct of the respondent and the extent of injury or hardship that will be caused to the respondent by the grant. It is always open to the Court to grant an alternative remedy such as security for costs or damages instead of a mandatory interlocutory injunction. The question for consideration is, whether it also applies to cases of this nature, whether on principle or of any authority.
13. In Nottingham Building Society v. Eurodynamics Systems plc, [1993] FSR 468 , Chadwick J laid down tests for the granting of mandatory interlocutory injunctions, thus;
‘ ’In my view the principles to be applied are these. First, this being an interlocutory matter, the overriding consideration is which course is likely to involve the least risk of injustice if it turns out to be ‘wrong’........Secondly, in considering whether to grant a mandatory injunction, the court must keep in mind that an order which requires a party to take some positive step at an interlocutory stage, may well carry a greater risk of injustice if it turns out to have been wrongly made than an order which merely prohibits action, thereby preserving the status quo . Thirdly, it is legitimate, where a mandatory injunction is sought, to consider whether the court does feel a high degree of assurance that the plaintiff will be able to establish his right at a trial. That is because the greater the degree of assurance the plaintiff will ultimately establish his right, the less will be the risk of injustice if the injunction is granted. But, finally, even where the court is unable to feel any high degree of assurance that the plaintiff will establish his right, there may still be circumstances in which it is appropriate to grant a mandatory injunction at an interlocutory stage. Those circumstances will exist where the risk of injustice if this injunction is refused sufficiently outweigh the risk of injustice if it is granted.
14. The other factor that is relevant is the extent to which the determination of the application at an interlocutory stage will amount to a final determination of the rights and obligations of the parties.
15. The point was addressed in NWL Limited v. Woods [1979] WLR 1294 . Lord Diplock said there that cases where the grant or refusal of an injunction at the interlocutory stage would, in effect, dispose of the action finally in favour of whichever party was successful in the application,were exceptional “ but when they do occur they bring into the balance of convenience an important additional element .” He concluded:
Where,however, the grant or refusal of the interlocutory injunction will have the practical effect of putting an end to the action because the harm which will have been already caused to the losing party by its grant or its refusal is complete and of a kind for which money cannot constitute any worthwhile recompense, the degree of likelihood that the plaintiff would have succeeded in establishing his right to an injunction if the action had gone to trial, is a factor to be brought into the balance by the judge in weighing the risks that injustice may result from his deciding the application one way rather than the other.
16. The Court is also required to demand a heightened level of proof. In Morris v. Redland Bricks Ltd, [1970] AC 652, [1969] 2 WLR 1437, [1969] 2 All ER 576 , Lord Upjohn held that the requirement of proof is greater for a party seeking a quia timet injunction than otherwise. He said: “ A mandatory injunction can only be granted where the plaintiff shows a very strong probability upon the facts that grave danger will accrue to him in the future.” As Lord Dunedin said in 1919 it is not sufficient to say “ timeo ” (see Attorney-General for the Dominion of Canada v. Ritchie Contracting and Supply Co Ltd [1919] AC 999 ). “It is a jurisdiction to be exercised sparingly and with caution but in the proper case unhesitatingly” and that “[T]he court must be careful to see that the defendant knows exactly in fact what he has to do and this means not as a matter of law but as a matter of fact, so that in carrying out an order he can give his contractors the proper instructions.” The applicant must therefore not only aver but must also prove that what is going on is calculated to infringe his or her rights.
17. Bearing those principles in mind, it is necessary to determine whether in the case at hand, the court is justified in granting this remedy.
18. Mandatory injunctions are ordinarily remedies in finality. The question before this court is whether in strictness a mandatory injunction can properly be made.
19. It would appear that if a mandatory injunction is granted at all on an interlocutory application, it is granted only to restore the status quo and not granted to establish a new state of things, differing from the state which existed at the date when the suit was instituted.
21.The grant of mandatory injunctions is discretionary which must be exercised with caution so as to avoid practically prejudging the suit, and occasioning other practical inconveniences of a lesser degree.
22. In exercising same the court will consider the facts and circumstances of a particular case and more particularly:
a) any delay or laches on the part of the applicant,
b) the extent of injury or inconvenience caused or posed to the applicant by the conduct of the respondent and ,
c) the extent of injury or hardship that will be caused to the respondent by the grant.
d) In lieu , it is always open to the Court to grant the interlocutory mandatory injunction or alternative relief in the circumstances
20. The purpose of such an injunction is to improve the chances of the court being able to do justice after a determination of the merits at the trial. At the interlocutory stage, the court must therefore assess whether granting or withholding an injunction is more likely to produce a just result at the end of the trial. If there is a serious issue to be tried and the applicant could be prejudiced by the acts or omissions of the respondent pending trial and the cross-undertaking in damages would provide the respondent with an adequate remedy if it turns out that his or her freedom of action should not have been restrained, then an injunction should ordinarily be granted (see National Commercial Bank Jamaica Ltd v. Olint Corp Ltd (Jamaica) [2009] 1 WLR 1405 ).
21. The basic principle is that the court should take whichever course seems likely to cause the least irremediable prejudice to one party or the other. This is an assessment in which, as Lord Diplock said in American Cyanamid Co v. Ethicon Ltd [1975] AC 396 at page 408.
22. In P hilip H. Petit; Equity and the Law of Trusts 4 th edition Butterworths at page 401 , the author states that there is no distinction between granting a prohibitory or mandatory injunction. Every injunction requires to be granted with care and caution but it is not more needed in one case than the other. The court will not hesitate to grant a mandatory injunction in an appropriate case but whenever it does so it must be careful to see that the defendant knows exactly what he has to do, not as a matter of law but as a matter of fact.
23. Binod Mohan Prasad in Mulla The Code of Civil Procedure seventeenth edition, at pages 254 to 257, states that courts can in exceptional cases grant a mandatory injunction on an interlocutory application. Such injunctions can be issued only in case of extreme hardship and compelling circumstances, mostly in those cases when the status quo existing on the date of the institution of the suit is to be restored. He cites a Calcutta case, Indian Cable Co Ltd V Sumira Chackraborty AIR 1985 Cal 248 , where the tenant was in peaceful possession, but had been wrongfully thrown out. His possession was restored on an interlocutory application. In other words, if it has to be granted at all on interlocutory application, a mandatory injunction is granted mostly to restore the status quo , and not to establish a new state of things.
24. According to the author, the grant or refusal of an interlocutory mandatory injunction ultimately rests in the sound judicial discretion of the court to be exercised in the light of the facts and the circumstances of each case. For instance, when a grant of a mandatory interlocutory injunction means granting substantially the relief claimed in the main suit, the court will be very slow and circumspect in the matter of granting any such prayer. This should be after notice to the other party and after hearing both parties.
25. The foregoing principles have, to an extent, been applied by courts in this region.
26. In Despina Ponticos [1975] 1 EA 38 the appellate court upheld a judgment of the High Court which had granted a mandatory injunction on grounds that the defendant had no defence. The appellate court stated that courts will not order mandatory injunctions which the defendant may be incapable of complying with. Secondly, the defendant must be capable to comply with such an order. In granting such an order the court must take into account the conduct of both parties. Also see Makubuya E. William t/a Polla Plast V Umeme Miscellaneous Application No. 234/2012, Madrama J.
27. Similarly, the Court of Appeal in Kenya Breweries Ltd & Another v Washington O. Okeyo [2002] 1 EA 109 reiterated that interlocutory mandatory injunctions are granted sparingly and only in the clearest of cases.
28. Applying those principles to the present case, this Court notes that the appeal before it challenges the ruling of the trial court declining jurisdiction upon finding that the dispute concerns matrimonial property. Whether that finding was correct is the central issue that will be determined during the hearing of the appeal.
29. Without prejudicing the determination of the pending Appeal before this court , the Lower court observed that the parties were divorced and the Appellant then sort for restraining orders against the Respondent
30. However, the lower court declined jurisdiction based on the fact that it would been tantamount to determining the issue of ownership of the matrimonial house and denying the respondent access to the home which issue had not placed before the court for determination .
31. Though in her affidavit the Applicant states that issue of ownership was determined in Homabay Elc case number E051 of 2022 vide a judgment dated 9 th February,2026 the court finds that the lower court never made any such determination and downed its tools .I have also looked at the title deed I note that the same has three names on it , which implied her ownership is not exclusive, no final determination has been made on this issue as well.
32. The mandatory orders sought would require the Respondent to surrender possession of the keys to the residential house and restore the Applicant's access and occupation pending appeal. These are substantive orders affecting possession of the suit property which may , of course determine the rights of the parties with finality
33. The court also notes that the Applicant is not resident in the country and basically she relies on information given to her by a caretaker, and it may be difficult for the court to tell the actual state of affairs that subsisted as at that time of the alleged takeover.
34. If granted, the orders would substantially alter the prevailing status quo and effectively confer upon the Applicant the very relief she seeks before the appeal is heard. Such orders would inevitably prejudice the determination of the appeal and, in practical terms, determine significant aspects of the dispute before the appellate Court has pronounced itself on the jurisdictional question.
35. The Court is therefore enjoined to exercise considerable restraint in granting such far-reaching interlocutory relief.
36. The Applicant has relied heavily on the allegation that the Respondent locked the residential house while inside were five goats, twelve chickens, one cow and three German Shepherd dogs which were allegedly left without food and water.
37. While this Court takes allegations concerning the welfare of animals seriously and condemns any conduct that unnecessarily subjects animals to suffering, the chronology of events disclosed in the application presents considerable difficulty.
38. The Applicant states that the alleged locking of the house occurred in May 2026. The present application was filed on 17th July 2026 and is being determined thereafter. The allegation that the animals have remained inside the house without food and water "for days" cannot, in the circumstances, sustain the urgency advanced by the Applicant.
39. Had the animals remained confined without food or water for the entire intervening period, the Court would reasonably expect evidence demonstrating their condition, intervention by the relevant authorities, veterinary reports, photographs, police reports or reports made to the relevant livestock or animal welfare agencies. No such material has been placed before the Court.
40. Conversely, if the animals were rescued, removed or otherwise attended to before the determination of this application, the emergency relied upon by the Applicant would no longer subsist. In either event, the material placed before the Court does not establish the exceptional circumstances necessary to justify the grant of an interlocutory mandatory injunction.
41. The Court is equally mindful that allegations of animal cruelty are matters capable of immediate intervention by the appropriate enforcement agencies and cannot, without sufficient evidential foundation, justify granting mandatory orders that would substantially determine the rights of the parties pending appeal.
42. Having considered the material placed before it, this Court is not persuaded that this is one of those rare and exceptionally clear cases contemplated in the authorities where an interlocutory mandatory injunction ought to issue.
43. The Court further finds that the Applicant has not demonstrated exceptional circumstances warranting the grant of orders that would alter the existing state of affairs before the appeal is heard and determined.
44. It should also be noted that an injunctive relief is discretionary which is based on sound legal principles ,one of them being that a deserving party must not be guilty of laches ,and to which the Applicant is a guilty party. No explanation has been made for the delay of two (2) months in coming to this court. .
45. The other aspect that the court considers is whether damages will suffice to be awarded, that is subject to the court’s determination.
46. There are also conflicting averments with the Applicant, on one hand, saying the house was locked denying her caretaker access thereto and interfering animals which are in dire need of food.
47. I have looked at the affidavit filed by the affidavit sworn by the Applicant and the court has noted it is deviative in two aspects :
a) It does not disclose source of information
b) It is not mentioned at the tail end of the application that is supportive
48. Affidavit evidence in civil matters is regulated by Order 19 of the CPR. The rules in this order give the parameters within which affidavit evidence is acceptable. It states under Order 19 rule 3 (1) of the CPR "Affidavits shall be confined to such facts as the deponent is able of his or her own knowledge to prove, except on interlocutory applications, on which statements of his or her belief may be admitted, provided that the grounds thereof are stated".
49. In the case of Premchard Raichard v Quarry Services Ltd (1969) EA 514 at 517 where Spry JA as he then was stated thus:
"lt has repeatedly been said by this court that affidavit based on information must disclose the source of information (see standard- Goods Corporation Ltd vs. Harakhchard Nahus & Co. (1950) 17 EACA 9). On this ground alone the Judge would have been entitled to refuse to act on the affidavit, this is not merely a matter of form, but goes to the essential value of the affidavit. It is clear from the above passage that disclosing the source of information of facts deponed to information, and giving ground of belief where facts are deponed to on belief and distinguishing between those facts which are deponed to on information, belief and knowledge of the deponent are fundamental requirements in the drafting of affidavit. An omission in any of them goes to the essential root of the affidavit. It renders the affidavit incurably defective".
50. Similarly, in the case of KCB Bank Uganda Limited v Kalema Deus HCMA No. 70412018 Justice Wabwire stated that: - non-disclosure of the source of information is however a breach of the law - (Order l9 rule 3 CPR) and has been held to be a fundamental requirement in drafting an Affidavit, with the consequence that omitting to disclose the source of information goes to the foundation of the Affidavit thus rendering it incurably defective
51. Therefore, an omission in the disclosure of the source of information of facts deponed and giving ground of belief, where facts are based on belief ,goes to the essential root of the affidavit. It renders the Affidavit incurably defective, unreliable and without evidential value. Failure to disclose the source of information is therefore a breach of law.
52. I find that the affidavit sworn by the Applicant is a candidate for striking out for fundamental breach but nonetheless, in the broad interest of justice the court will still consider the said affidavit, as failure to which will occasion injustice to an innocent party
53. However ,the other saving grace is that the respondent has also not raised any issue with the Applicants affidavit and has gone ahead to make a reply thereto
54. I find that that no prejudice will be occasioned in relying on the affidavit as part of evidence but as stated by the superior court the probative value thereof is diminished
55. Bosire Ag. J.A. in his judgment in the case of East African Packing Industries Limited v. Zoeb Alibhai, Civil Appeal No. 124 of 1996, (unreported) said this:
“To my mind the sources of information and grounds of belief are primarily essential for purposes of veracity. Consequently, a failure by a deponent to disclose with particularity the sources of the information he has deposed to has the effect of weakening the probative value of the information and even render it worthless. It does not, in my view, render the relevant paragraph defective.”
56. In the case of Anastacia Kioko Mululu & Another t/a Archer & Wilcock Advocates v Winfred Wanjama Warui t/a Wanjama & Associates (2012) eKLR. , Havelock J, in striking out certain paragraphs of an affidavit sworn by an Advocate on behalf of the defendant in the matter, stated:
“ 10. To that end, I would strike out paragraphs 4, 5, 6, 10, 11, 12, 18, 23, 24, 26, and 27 based on Order 10 Rule 3 of the Civil Procedure Rules 2010 on the grounds that either those are not within the deponent’s personal knowledge or that she has failed to disclose her source of information. I would also strike out paragraphs 19, 29, and 32 of the Replying Affidavit on the grounds that I feel that these 3 paragraphs are scandalous, irrelevant or oppressive.”
57. In the court of Appeal case Simon Kitavo Nduto & another v Benson Owenga Anjere [1997] KECA 404 (KLR) the Judges observed thus :
“ It is well settled that where an affidavit is made on information it should not be acted upon by any court unless the source of information is specified. But what if the affidavit contains merely a correct statement of law like in the instant appeal?
It was open for Miss Janmohamed to seek to cross-examine the respondent and obtain the name of the advocate who so advised the respondent but striking out such a paragraph would be too drastic more so when it only set out the law which need not have been set out. We understand, however, that as a result of the learned judge’s order to disclose the name of the advocate, the respondent has done so.”
58. On the hand the respondent, who alleges to be in possession ,denies evicting the applicant ; he goes on to state that the Respondent is using concocted allegations of ‘’locked doors ‘’ and ‘’ unfed animals’’as a Trojan Horse to obtain mandatory injunctive orders; that under Section12(1) of the matrimonial Property Act , a spouse cannot be evicted without an express court order , and lastly , that the appellant has come this court with unclean hands by failing to serve the primary appeal documents .
59. I find that in the case though parties have laid contrasting claims, it would appear that the respondent has been in possession of the so called matrimonial home ,and the applicant is neither occupying, nor accessing the same ,but both are laying claim thereto. Though the Applicant says and insists that house is locked it is not disputed that she resides abroad and her information on eviction is basically on information given by a third party , whose affidavit has not been attached to the application,of course with leave of this court.
60. The other reason why the application is how it is framed. It refers to an interested party who is unknown in the proceedings therefore the order cannot be made against to the suit.
60. In my opinion, considering the nature of the applicant’s prayers in the main Appeal, if there is any damage caused by the respondents’ activities, it is atonable in damages. In the event that the applicant is successful in establishing her rights in the Appeal, the orders prayed for would be an adequate solace to atone the injuries claimed.
61. Preserving the status quo would be preserving the situation as it is, that is the respondent continuing to occupy and use or develop the land pending the determination of the rights of the parties in the Appeal
62. I find the status quo to be in favour of the respondent who is in actual possession of the suit land rather than the applicant. As such, restraining the respondents would alter the status quo rather than maintain it.
63. It is appropriate that the parties preserve the property pending the determination of the appeal.
Disposition
25. Consequently, the Notice of Motion dated 17th July 2026 is hereby dismissed.
26. For the avoidance of doubt, the parties shall maintain the prevailing status quo obtaining as at the date of this ruling pending the hearing and determination of the appeal.
27. This means the Respondent should not in any way part with possession or do anything that dimishes the value of the said property until the Appeal is determined
28. Costs of the application shall abide the outcome of the appeal
Ruling delivered and dated at Homabay via teams online platform on this 31 st day of July ,2026
In the presence of ;
1.Oyala for Nyarige for the Respondent
2. Kimberly for Obwanda for the Applicant
2. Court Assistant- Bosibori