This is a matter that is finalized judgment having been delivered on 21/12/2022 in favour of the Petitioner which Judgment is the subject of an appeal to the Court of Appeal.
Vide the Notice of Motion application dated 23/4/2025, the Petitioners approached the court under Certificate of urgency seeking for orders substantively for citing the 1st Respondent for contempt of court. The petitioner also sought for an interim order of status quo maintaining the status quo of the suit land in effect barring the Judgment debtor from inter alia undertaking excavation, construction or development on the suit land pending hearing and determination of the application.
On basis of the averments in the Supporting Affidavit and the annextures thereto, the court certified the application urgent and directed that the application be served upon the Respondents for mention on 28/4/2025 for directions and/or orders.
There is no dispute that the Applicant and the other Respondents in the Petition were served on with the directions of the court. The applicant’s contest is that the notice was too short for it (applicant) to act.
On the date of mention there was no representation by the Respondents. The court issued an order of status quo as prayed and gave directions on filing of response to the application and fixed the application for hearing before the trial court which as at the date was on leave.
Subsequently, the applicant filed the application dated 2nd May 2025 seeking for an order that pending the inter partes hearing and determination of the application and the Notice of Motion application dated 23rd April 2025 by the Petitioner there be an order of stay of execution and/or enforcement of the ex parte order of temporary injunction issued by the court on 28/4/2025.
The application was brought on the grounds shown on the face of the application and the Supporting Affidavit substantively that the 1st Respondent/applicant was given such short notice or no notice at all in relation to the mention that took place on 28/4/2025 when the interim order was granted.
The application was opposed vide the Replying Affidavit dated 8/5/2025.
I have considered the application, the Replying Affidavit and the oral submissions made by Counsel.
The substantive application filed by the Petitioners has not been heard. It is that application which will determine whether the Respondent is in breach of the Judgment of the court or not.
In the meantime, photographs annexed to the application showed construction work going on which according to the petitioner was work being done by the Respondents at the same site that was the subject of the Petition and the Judgment. Prima facie there was need to stop the works pending hearing of the application. The interim order granted was for maintenance of status quo in respect of the suit land only by stopping any further excavation, construction or developments thereon. The order did not stop the construction of Kisumu-kakamega-Webuye- Kitale Highway.
Taking into account all the material placed before court, the court finds no reason to order stay of execution or enforcement of the order. The 1st Respondent’s application dated 2nd May 2025 is therefore hereby dismissed. No order as to costs.
Parties to comply with the directions given on 28/4/2025 for expeditious disposal of the sustentative application.