1. Before this court is a notice of motion application dated 18th February 2025 seeking an order of temporary injunction restraining the defendants/respondents by themselves, their agents, family members, relatives, and/or any other person acting under their instructions, from demolishing structures, trespassing, cultivating, destroying trees and crop, gaining forceful entry or in any other like manner interfering with the plaintiff/applicant’s property located at Tamarkong village, Kaben Location measuring approximately 3 Acres (suit property), pending the hearing and determination of the suit; That the Officer Commanding Station, Liter Police Station do assist in enforcing these orders; that costs be awarded to the plaintiff/applicant.
2. The application is premised on the grounds on its face and supported by the affidavit of Simon Rotich Changwony sworn on 18th December 2025. He avers that he is the legal owner of the suit property having purchased the land on 26th February 1990 from the 1st defendant and others (copy of purchase agreement annexed and marked SRC1); that he has been in peaceful occupation of the suit property until a dispute emerged with the defendants/ respondents who invaded the suit property, destroyed Mango trees and removed flowers, which actions have deprived him of his land; that efforts to settle the matters amicably have been futile (copy of a letter marked SRC annexed and marked SRC2).
3. The application is not opposed.
4. I have carefully read and considered the case urged by the plaintiff/applicant and the law applicable and I find the sole issue for determination to be whether the plaintiff/ applicant has satisfied the conditions to be granted a temporary injunction.
5. To be granted the order sought, the applicant must satisfy the conditions set out in the case of Giella vs. Cassman Brown (1973) EA 358. These are:
i) He must show a prima facie case with a probability of success;
ii) Demonstrate that unless the order sought is granted, he may suffer irreparable injury.
iii) If the court is in doubt, it will decide the application on a balance of convenience.
6. The substantive law on this matter is Order 40 rule 1 of the Civil Procedure Rules which provides;
“Where in any suit it is proved by affidavit or otherwise that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit, or wrongly sold in execution of a decree ... 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.”
7. The purpose of Order 40 rule 1 of the Civil Procedure Rules has been stated in the case of Hadar Limited v SBM Bank (Kenya) Limited (Civil Case E031 of 2023) [2024] as follows: -
“There is need to preserve property that is subject to court proceedings so as to protect the court from giving orders in vain upon hearing and determining a suit. Order 40, of Civil Procedure Act gives the court discretion to issue orders which are in the nature of an injunction restraining dealings on property pending further orders by the court. The court at this stage is not required to determine the merits and demerits of the applicant’s claim. The court is only required to determine whether the applicant has established a prima facie case.”
8. A prima facie case was defined in Mrao Ltd v. First American Bank of Kenya Ltd& 2 Others [2003] eKLR, where Bosire, JA stated as follows:
“So what is a prima facie case? I would say that in civil cases it is a case in which on the material presented to the Court or 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.”
9. In the instant case, the defendants have not entered appearance, filed a defence and/or a replying affidavit to controvert the plaintiff/ applicant’s allegations.
10. Although the allegations by the plaintiff/ applicant are not contested, in paragraph 8 of the plaint, the plaintiff/ applicant states; “the plaintiff avers that on 3/7/2024 a decision was made at the Assistant County Commissioner’s office under a panel of elders to the effect that he is to relocate and without compensation for a parcel of land that he purchased and has lived in and developed for a period of more than twelve years”.
In his supporting affidavit he states;
“4. That l have been in peaceful occupation of the aforementioned until when a land dispute with the Defendants/ Respondents emerged.
5. That the Defendants/ Respondents invaded the land, destroyed the Mango trees and removed the flowers on the aforementioned land parcel
6. That efforts to have this matter amicably settled have been futile.
7. That the actions of the Defendants/ Respondents have deprived me of my land”
11. The plaintiff /applicant in his plaint and supporting affidavit, admits that in a meeting held on 3rd July 2024, a decision was made that he moves out of the suit property and that the defendants/ respondents have since invaded the suit property, destroyed Mango trees and removed flowers which actions have deprived him of his land.
12. From the averments above, it is not clear who between the plaintiff/ applicant and the defendants/ respondents is in occupation of the suit property.
13. In considering the above circumstances, it is better to safeguard and maintain the status quo for a greater justice than let the status quo, defined by The Black’s Law Dictionary, Butter Worth’s 9th Edition, as ‘the situation as it exists’, be disrupted by not granting the interlocutory injunction and after hearing the application, find that a greater injustice has been occasioned.
14. The applicant having moved the court under the provisions of Sections 3A of the Civil Procedure Act, which grants this court a wide discretion to grant interlocutory orders as may appear to be just and convenient, the court has a duty to do justice to the parties before it.
15. Having considered the circumstances of this case, it is the view of this court that apart from preserving the substratum of the subject matter, an order of status quo is the most suitable order to grant in this case, where the court will be keen to prevent prejudice as between the parties in a matter pending for hearing and determination. As it stands, both parties have an interest in the suit property that needs to be preserved.
16. Having found as herein above, I find and hold that the application dated 18th February 2025 is merited and is hereby allowed in the following terms; i) Status quo to be maintained in the suit property. This means, there shall be no eviction from the suit property of any party who is currently in occupation until the suit is heard and determined;
ii) No order is made on costs as the application was not defended.
17. Orders accordingly.
Dated, signed and delivered virtually at Kabarnet this 17th day of July, 2025 in the absence of both parties.
Court Assistant; - Ian