I. Introduction
1. In this Ruling, the Honourable Court was tasked with determination of twin applications dated 8th January 2026 and 22nd January, 2026 by the Plaintiff and the 3rd Defendant respectively. It is instructive to note that in the interest of justice and saving precious judicial time which is more often limited, this court endeavours to deal with both applications simultaneously.
2. The application dated 8th January 2026 was filed pursuant to the provisions of Order 40 Rules 1, 2, 3 and 4, Order 9 Rule 2[a] of the Civil Procedure Rules, 2010, Sections 1A, 1B and 3A of the Civil Procedure Act Cap. 21 of the Laws of Kenya.
3. The application was opposed through a Replying Affidavit dated 22nd January 2026 sworn by Zainab Hadula Kofa the director and authorised officer of the 3rd Defendant. The 2nd Defendant, Grace Njoki Ratemo also filed an affidavit in response to the application. It was dated 22nd January, 2026.
4. The application dated 22nd January 2026 was brought under the provision of Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21, Order 51 Rule 1, Order 40 Rule 1of the Civil Procedure Rules, 2010 and all other enabling Statutes and all other enabling provisions of the law.
5. Upon service, the said application was opposed through a Replying Affidavit dated 12th February, 2026 sworn by David Gitau Burugu, the Plaintiff herein.
II. The Notice of Motion application dated 8th January, 2026 by the Plaintiffs/Applicants
6. The Plaintiff/Applicant sought for the following orders:-
a. Spent.
b. That this Honourable Court be pleased to approve and recognise DAVID GITAU BURUGU, the donee under Power of Attorney Registration No. 23576, as a recognised agent of the Plaintiff and to deem the suit and all pleadings filed herein as duly and properly filed.
c. That pending the hearing and determination of this Application inter partes, a temporary injunction be issued restraining the 3rd Defendant whether by its directors, officers, agents, servants and/or authorised representatives from continuing with further development or construction of structures, selling, transferring, alienating, disposing of, leasing, sub - dividing, charging or in any other manner dealing or interfering with the parcel of land known as Title No. GALU/KINONDO/115.
d. That pending the hearing and determination of this suit, a temporary injunction be issued restraining the 3rd Defendant whether by its directors, officers, agents, servants and/or authorised representatives from continuing with further development or construction of structures, selling, transferring, alienating, disposing of, leasing, subdividing, charging or in any other manner dealing or interfering with the parcel of land known as Title No. GALU/KINONDO/115.
e. That this Honourable Court do grant leave to the Plaintiff/Applicant to serve Summons upon the 1st, 2nd and 3rd Defendants by substituted service by means of advertisement in any one of the daily newspapers with nationwide circulation.
f. That the costs of this Application be provided for.
a) The application was premised under the grounds, testimonial facts and the averments made out under the 30 Paragraphed supporting affidavit sworn by DAVID GITAU BURUGU the Plaintiff’s Attorney duly appointed under the Power of Attorney registered as Reg No 23576. The deponent averred as follows that:-
b) He had the Plaintiff’s authority to institute and prosecute the instant suit.
c) The Plaintiff was 85 years old and had been unwell for some time and was undergoing medical treatment.
d) According to the deponent, the suit property measuring approximately 1.7Ha was owned by the Plaintiff who was the registered owner having acquired the same sometime in February, 1978 for valuable consideration from one Hamisi Mohamed Mwatsengeza and Ali Mohamed Kigoti.
e) The Plaintiff was issued with a title deed on 22nd March, 1978 and had at no particular time ever transferred or sold or leased the suit property to anyone.
f) However sometime in the year 2025 the Plaintiff discovered widespread illegal transfers of the suit property with green cards to that effect at the Kwale Lands Registry.
g) The records indicated that he had allegedly transferred the suit property to the 1st Defendant sometime on 5th August, 1996, from the 1st Defendant to the 2nd Defendant on 27th February, 2008 and to the 3rd Defendant on 11th April, 2025.
h) The Plaintiff averred that he further discovered several other parcels as listed under paragraph 15 had also been fraudulently transferred to other parties.
i) According to the Plaintiff, all these properties were rightfully acquired for valuable consideration and had at no given point been sold or transferred to other parties by him.
j) The Plaintiff stated that it was the 3rd Defendant who had upon taking the physical possession of the property caused developments on the same and hence necessitated the Plaintiff to register caution on the suit property.
k) The 3rd Defendant had further made an application to further sub - divide the suit property but the sub - division had been objected to by the Plaintiff.
l) It was stated that the 3rd Defendant now held a title to the suit property that was fraudulently acquired and the Plaintiff was apprehensive that unless this court restrains it, the caution might be removed and the sub - division might proceed to the detriment of the Plaintiff.
m) The Plaintiff stated that he had a prima facie case and hence the application was justified and ought to be allowed by the court.
III. The responses by the 2nd Respondent
7. The 2nd Respondent filed a Replying Affidavit dated 22nd January, 2026 in opposing the application. It was sworn by the 2nd Respondent in person. She averred as follows that:-
a) The application was devoid on merit and hence it ought to be dismissed for material non-disclosure and omissions.
b) She acquired the suit property from the 1st Defendant pursuant to a sale.
c) Upon execution of the relevant documents the property was registered in her name in 27th February, 2008.
d) At all times she had been a bona - fide purchaser for value without notice of the suit property and had no notice of any defect in the title as was owned by the 1st Defendant.
e) It was averred that she then sold the property to the 3rd Defendant and the transfer was duly executed.
f) The sale was lawful transparent and was properly registered. That the allegations of fraud were vague, generalised and unsupported by any credible evidence.
g) The Plaintiff had failed to demonstrate any act or omission on her part.
h) It was stated that fraud ought to be particularised and specifically pleaded but the same was not the case in the instant application.
i) The court was further being invited to determine the root of the title without proper viva voice evidence and hence the plaintiff had failed to meet the requisite threshold for an interlocutory injunction having not established a prima facie case.
j) Thus, the court was urged to dismiss the case having failed to meet the legal threshold.
k) The 3rd Respondent also opposed the Plaintiff’s application through a Replying affidavit sworn by Zainabu Hadula Kofa, a Director and duly authorized officer of the 3rd Defendant/Respondent, authorized to swear the affidavit on its behalf.
l) The deponent stated that the application was devoid of merit, had been brought in bad faith, and ought to be dismissed as it contained material non-disclosures relevant to the determination of this suit.
m) The 3rd Defendant was the registered proprietor of the suit property having acquired the same lawfully and for valuable consideration. Prior to the acquisition of the suit property, the 3rd Defendant/Respondent conducted official searches at the relevant Land Registry, which revealed no adverse claims, caveats, cautions, or any encumbrances whatsoever.
n) It was stated that the 3rd Defendant/Respondent had no actual or constructive notice of the Plaintiff's purported interest or claim to the suit property. The 3rd Defendant/Respondent purchased the suit property from the 2nd Defendant pursuant to a valid Sale Agreement, and the transfer was duly registered on 11th April 2025 in accordance with the law.
o) Immediately upon purchase and registration, the 3rd Defendant/Respondent took actual physical possession of the suit property sometime in April, 2025 and had since remained in open, continuous, peaceful, and uninterrupted possession and occupation thereof to date.
p) Despite of the 3rd Defendant/Respondent's open and continuous possession and occupation of the suit property since April, 2025, no claim, objection, or protest was raised by the Plaintiff/Applicant or any person claiming through him.
q) The Plaintiff/Applicant had failed to demonstrate or provide any credible evidence showing how, when, or from whom he purportedly acquired any interest in the suit property, rendering his claim speculative and unsubstantiated.
r) The 3rd Defendant stated that it was the bona fide purchaser for value without notice of any competing interest of the suit property and was therefore entitled to the full protection of the law as the registered proprietor of the suit property.
s) Any caution lodged by the Plaintiff/Applicant was registered on 20th November, 2025, approximately eight (8) months after the 3rd Defendant/Respondent's registration as proprietor on 11th April, 2025, and therefore could not retroactively affect or defeat the 3rd Defendant/Respondent's vested rights as a bona fide purchaser for value without notice.
t) Further that the Plaintiff/Applicant had failed to produce any credible, cogent, or admissible evidence of fraud, misrepresentation, illegality, or any actionable wrong committed by or attributable to the 3rd Defendant/Respondent.
u) The allegations levelled against the 3rd Defendant/Respondent were vague, generalized, speculative, and entirely unsupported by evidence.
v) The deponent stated that the 3rd Defendant/Respondent had invested substantially in the suit property, including but not limited to the purchase price, stamp duty, legal fees, registration fees, survey costs, and development expenses, all of which would be jeopardized by the granting of the orders sought.
w) Also that:
i. Fraud must be specifically pleaded and strictly proved;
ii. The principle of indefeasibility protects a registered proprietor who acquired property as a bona fide purchaser for value without notice;
iii. A subsequent caution could not defeat a prior registered proprietor's rights.
i). The Plaintiff/Applicant had failed to establish a prima facie case with a probability of success against the 3rd Defendant/Respondent and had not demonstrated any sustainable cause of action warranting the grant of the interlocutory orders sought.
k). The balance of convenience overwhelmingly favours the 3rd Defendant/Respondent as the registered proprietor who had acquired the property lawfully, paid full consideration, and invested substantial resources therein. The Plaintiff's remedy, if any existed, lied in seeking damages against the 1st and/or 4th Defendants and not in dispossessing an innocent purchaser for value.
m). The court was urged to dismiss the application as it was misconceived and lacked merit.
IV. The Notice of Motion application dated 22nd January, 2026 by the 3rd Respondent
8. The 3rd Defendant filed its application dated 22nd January 2026. They sought for the following orders before court:-
a) Spent.
b) That pending the hearing and determination of this Application, the status quo as at 21st January 2026 regarding possession, and occupation of Title No. GALU/KINONDO/115 by the 3ed Defendant/Applicant be preserved.
c) That pending the hearing and determination of this Application, the Plaintiff/Respondent, their agents, servants, and/or any person acting under their authority be restrained from entering upon, trespassing, interfering with, harassing, evicting, or in any manner disturbing the Applicant's quiet possession of the suit property.
d) That pending the hearing and determination of this suit, the Plaintiff/Respondent, their servants, and/or agents be restrained from lodging or processing any instruments, applications, consents, or requests aimed at altering the register, removing cautions, procuring new entries, or interfering with existing land records in relation to Title No. GALU/KINONDO/115.
e) That pending the hearing and determination of this suit, the 4th Defendant/Respondent, their officials, servants, and/or agents be restrained from registering any dispositions affecting, altering, or interfering with existing land records in relation to Title No. GALU/KINONDO/115, save by order of this Honourable Court.
f) That the OCS Diani Police Station to oversee compliance of this Honourable Court orders.
9. The application was premised on the grounds, testimonial facts and the averments made out under the Supporting Affidavit sworn by ZAINABU HADULA KOFA. She averred as follows:-
a) She was a Director and duly authorized officer of the 3rd Defendant/Applicant, authorized to swear the Affidavit on its behalf.
b) It was deposed that the 3rd Defendant/Applicant was the registered proprietor of the suit property, Title No. GALU/KINONDO/115.
c) The 3rd Defendant/Applicant purchased the suit property from the 2nd Defendant/Applicant pursuant to a Sale Agreement, and the transfer was duly processed and registered in favour of the 3rd Defendant/Applicant.
d) Upon purchase and registration, the 3rd Defendant/Applicant took possession of the suit property and had since remained in open, continuous and uninterrupted possession and occupation thereof.
e) There were existing interim court orders and a recent registry entry affecting dealings in respect of the suit property and the Applicants had complied and continue to comply with all existing court orders and did not seek to undermine the authority of this Honourable Court.
f) The 3rd Defendants/Applicants were constrained to seek urgent preservatory and stabilizing orders due to escalating interference, threats, and disturbances at the suit property.
g) The Plaintiff/Respondent had begun introducing prospective purchasers and/or brokers to the suit property and holding it out as available for sale or disposal, notwithstanding that he was not the registered proprietor.
h) On diverse dates, the deponent personally observed, and/or had been informed by their site personnel that the Plaintiff/Respondent and/or his agents or representatives had been attending at or near the suit property and pointing it out to third parties as land available for sale.
i) She was apprehensive that unless restrained, the Plaintiff/Respondent's conduct of marketing and introducing prospective buyers will attract third-party interests, create off-register transactions, complicate this suit, and heighten the risk of confrontation and breach of peace.
j) The Plaintiff/Respondent had further deployed neighbours and/or hired persons to intimidate and interfere with the Applicants' peaceful possession and occupation of the suit property.
k) Unless this Honourable Court urgently intervened the Plaintiff/Respondent's conduct was likely to occasion wastage, confrontation, and escalation, and may expose the Applicants' servants, workers, contractors, and agents to threats and violence, thereby exposing the Applicants to substantial loss that could not be adequately compensated by costs.
l) It was necessary for this Honourable Court to maintain the status quo, restrain interference with the Applicants' possession, and prohibit the Plaintiff/Respondent from marketing or dealing with the suit property pending determination of the suit.
m) It was also necessary that this Honourable Court restrained the 4th Defendant from registering any dealings, transfers, charges, or alterations to the register affecting the suit property, save by order of this Honourable Court.
n) This Application was aimed at preserving the substratum of the suit, preventing breach of peace, preventing the introduction of third-party interests and off-register dealings, and stabilizing the situation pending “inter partes” hearing, and did not amount to a final determination of the dispute.
o) The court was further urged to direct that the Officer Commanding Station (OCS), Diani Police Station, to assist in the enforcement of this Honourable Court's orders only in the event of resistance, threatened breach, or actual breach of peace, so as to maintain public order and safeguard the parties and their agents.
p) It was necessary that the Court issued interim orders maintaining status quo as prayed, and issues expedited directions for hearing of all pending interlocutory applications.
V. The response by the Plaintiff
10. The application was opposed by a 17 Paragraphed Replying Affidavit dated 12th February 2026 sworn by David Gitau Burugu, the Plaintiff/Respondent's Attorney duly appointed under Power of Attorney Registration No. 23576, hence competent and duly authorised to swear the affidavit on behalf of the Plaintiff/Respondent. The deponent stated that as follows:-
a) He was aware the court had issued preservatory/injunctive orders in this matter on 15th January, 2026 and the same were subsequently registered against the title on 21st January 2026 as evidenced by the copy of the green card exhibited by the 3rd Defendant.
b) The deponent was further aware that the registration of the court order against the title was solely for purposes of preserving the suit property and preventing any further interference with the land register pending the hearing and determination of the Plaintiffs application.
c) The 3rd Defendant remained reflected on the register as proprietor and what had been restrained was only further construction and dealings so as to safeguard the substratum of this suit.
d) The 3rd Defendant has not demonstrated, how such registration of a preservatory/injunctive orders had prejudiced it in a manner that warrants the drastic and far -reaching orders now sought in this application.
e) The allegations contained in the 3rd Defendant/Applicant's application, particularly the allegations of trespass by the Plaintiff, deployment of gangs, harassment, eviction, intimidation, waste, unlawful marketing and/or introduction of purchasers, are bare, malicious and unsupported by any credible evidence, and were strictly denied by the Plaintiff.
f) The 3rd Defendant/Applicant had not annexed any OB number, police report, photographs or any evidence to credibly support such grave allegations against the Plaintiff.
g) It was deposed that the allegations were framed in a manner intended to paint the Plaintiff as the aggressor, yet the Plaintiff is the party who moved this Court seeking lawful redress after discovering fraudulent and illegal interference with his long-standing title.
h) It was illogical for the 3rd Defendant to allege that the Plaintiff was "selling" or "marketing" the property when the register presently reflected the impugned entries. The Plaintiff could not transact on the suit property whose register had been interfered with and was under challenge. That was precisely why this suit was instituted.
i) The Plaintiff had not attempted to evict the 3rd Defendant outside the Court process as alleged or at all. On the contrary, the Plaintiff had sought lawful eviction through the pleadings filed herein. The allegation of extra-legal eviction was therefore absurd, unfounded and is calculated to inflame.
j) The deponent referred to the present application as an attempt to reverse, weaken and/or circumvent the preservatory/ injunctive orders granted by this Court by introducing unsubstantiated allegations.
k) The Plaintiff/Respondent had no objection to "status quo” being maintained, provided that "status quo" was well defined to mean no further construction/development, no sub - division, no sale, transfer, charge, lease or other dealings, and no tampering with register entries, including the caution and court order already registered, pending inter partes hearing and determination of the suit/application.
l) Also that it was not sufficient in law for the 3rd Defendant to merely state "I hold a title". The root, legality and validity of that title were the central issues for determination in this suit.
m) The deponent sought for the dismissal of the suit with costs to the Plaintiff.
VI. Submissions
11. On 4th March 2026, in the presence of all the parties herein, the Honorable Court directed parties to canvass the matter by way of written submissions. Unfortunately, at the time of writing this ruling, only the Plaintiff had filed their written submissions. Nonetheless, upon the lapse of the stipulated timeline, Court has decided to render its ruling on its own merit whatsoever.
A. The Written Submissions by the Plaintiff
12. The Plaintiff’s submissions are dated 18th March 2026 and were filed through the Law firm of Messrs. Waithera Ngigi & Company Advocates. M/s, Ngigi Advocate commenced her submissions by providing brief facts of the case. The Plaintiff identified the following two issues for determination:-
a. Whether the Plaintiff has satisfied the threshold for grant of an injunction pending the hearing and determination of the suit
b. Whether the 3rd Defendant’s application is merited
13. On the first issue, reference was made to the principles of an injunction as well settled in the case of “Giella – Versus - Cassman Brown [1973] EA 358”. It was submitted that the Plaintiff had demonstrated a strong prima facie case with a probability of success by exhibiting a title deed issued to him on 22nd March, 1978, which he continued to hold to date. That it confirmed that the suit property was originally registered in the Plaintiff’s name prior to the subsequent entries in favour of the 1st, 2nd and 3rd Defendants.
14. The Learned Counsel contended further that the Plaintiff had never sold, transferred nor in any manner disposed of the suit property, nor executed any transfer instruments or obtained any Letter of Consent from the Land Control Board in favour of the 1st Defendant or any other person. It therefore followed that the purported transfer to the 1st Defendant in the year 1996 was prima facie fraudulent, illegal, null and void.
15. It was submitted that despite proper service to the 1st Defendant on 10th March, 2026, the 1st Defendant has not filed any response to controvert the Plaintiff’s claim. The Plaintiff’s assertion that he never transferred the suit property to the 1st Defendant therefore stands unchallenged. That the 1st Defendant could not pass a valid title to the 2nd Defendant, and consequently, the 2nd Defendant could not confer a valid title to the 3rd Defendant. The entire chain of title was therefore impeachable.
16. It was submitted that the 2nd and 3rd Defendants sought refuge under the doctrine of bona fide purchaser for value without notice. However, this defence was not available where the root of title was under challenge. To buttress on this point, reliance was placed in the dictum in the case of:- “Nyangw’ra – Versus - Njuguna & another [2013] KEELC 161 [KLR] and the supreme case of: “Dina Management Limited – Versus - County Government of Mombasa & 5 Others [2023]”.
17. The Learned Counsel contended that the Defendants had merely relied on the existence of title without satisfactorily explaining the legitimacy of the initial transfer from the Plaintiff, which was the foundation of their claim. Further, that the Plaintiff had exhibited additional green cards relating to his other parcels of land in Kwale which reveal unlawful, irregular and unexplained alterations, cancellations and/or replacement of entries, similar in pattern and character to the interference observed in respect of the suit property. That this evidence points to a systematic and concerted interference with the Plaintiff’s land records, thereby lending credence to the Plaintiff’s claim that the impugned entries are fraudulent and part of a wider scheme.
18. In addition, the Plaintiff had demonstrated that the suit property had remained vacant for many years until the 3rd Defendant entered the land in or about October, 2025 and commenced construction thereby altering the status of the suit property and threatening to defeat the substratum of this suit.
19. In the premises, the Plaintiff had established a clear, arguable and prima facie case with a probability of success, warranting the issuance of an injunction to preserve the suit property in terms of prayer [d] pending the hearing and determination of this suit.
20. On irreparable harm, it was submitted that the Plaintiff had demonstrated that he stood to suffer irreparable harm which could not be adequately compensated by an award of damages unless the orders sought are granted. That the suit property was a unique and prime parcel of land to which the Plaintiff laid claim as the registered proprietor since year 1978. Its loss through an unlawful process cannot be adequately remedied by monetary compensation. Further, ongoing construction by the 3rd Defendant poses a real risk of permanent alteration of the property. If the 3rd Defendant was not restrained, there was a real and imminent risk that further developments would continue and the character and substratum of the suit property will be permanently altered. In the premises, it was necessary for this Honourable Court to intervene and preserve the suit property pending the hearing and determination of this suit.
21. Lastly on this application, the Learned Counsel submitted that the balance of convenience tilted heavily in favour of the Plaintiff. The Plaintiff had demonstrated that he was the lawful registered proprietor of the suit property and had challenged the legality of the entire chain of title culminating in the 3rd Defendant’s registration.
22. With regard to the application filed by the 3rd Respondent. The Learned Counsel opined that the application was misconceived, unmeritorious and an abuse of the court process. Indeed, that the application was premised on allegations that the Plaintiff had trespassed, deployed gangs, threatened, wasted the property and attempted to sell the suit property and these allegations were unsupported by any evidence. No police report, OB number, photographs, witness statements or documentary proof has been placed before this Honourable Court to support such serious allegations. Therefore, they were mere assertions intended to mislead the Court.
23. The Learned counsel submitted that these were mere allegations, crafted to alarm the Court and to portray the Plaintiff as the aggressor, yet the Plaintiff was the one who had come to Court seeking lawful redress. The allegation that the Plaintiff intended to sell the property was false, illogical and self-defeating. This was because the current register reflected the 3rd Defendant as proprietor. The Plaintiff had approached this Court precisely to challenge that registration, he could not lawfully deal with the suit property outside the legal process.
24. The court was reminded that it had already issued preservatory orders registered on 21st January, 2026. Those orders merely restrain further dealings and construction. The 3rd Defendant remains reflected as proprietor and has demonstrated no prejudice. That the present application was therefore an attempt to circumvent and defeat existing court orders. Further, the 3rd Defendant’s reliance on title is misplaced. Where the root of title was under challenge, title alone could not ground an equitable relief.
25. The court was urged to allow the Notice of Motion application dated 8th January, 2026 instituted by the Plaintiff in terms of prayer [d] and costs of the application be awarded to the Plaintiff and to dismiss the Notice of Motion application dated 22nd January, 2026 by the 3rd Defendant with costs.
VII. Analysis and Determination
26. This Honourable Court has keenly considered all the issues raised in the two ( 2 ) applications application dated 8th January, 2026 and 22nd January, 2026, the Supporting affidavits in both applications and the respective responses thereto together with the submissions, the cited authorities on record by the Plaintiff/Applicant. Further, it has also considered the provision of the Constitution of Kenya, 2010 and the statures.
27. In order to arrive at an informed, just, fair and reasonable decision, the Court has framed the following three ( 3 ) issues for its determination. These are: -
a) Whether the Notice of Motion application dated 8th January 2026 and 22nd January 2026 meets the established threshold for granting temporary injunction orders.
b) Whether the parties are entitled to the relief sought.
c) Who will bear the Cost of the two ( 2 ) applications?
ISSUE No a). Whether the Notice of Motion application dated 8th January, 2026 and 22nd January, 2026 meets the established threshold for granting temporary injunction orders.
28. Before embarking on discussions with regards to the applications under this sub - heading, I wish to point out one thing herein, Coincidentally, both applications seek for temporary orders of injunction as per their respective cases and the facts presented. It is my view that the applications can be determined simultaneously based on the nature of the prayers sought.
29. As indicated, the applications were brought under the provision of Order 40 Rules 1 and 3 of the Civil Procedure Rules, 2010. The law stipulates as follows:
“[Order 40. rule 1] Cases in which temporary injunction may be granted. 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 according 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.”
30. In addition, these applications were also brought under the provisions of Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. which grants this court a wide discretion to grant interlocutory orders as may appear to be just and convenient.
31. I have looked at the applications as presented before court, in the application dated 8th January 2026, the Plaintiff intimates that he is the registered proprietor of the suit property having been registered as the proprietor on 22nd March, 1978. The Plaintiff stated that to his utter shock and dismay, he discovered that the suit property had been transferred to the 1st Defendant and subsequently to the 2nd and 3rd Defendant who was now the registered proprietor of the suit property and was making developments on the suit property.
32. It is the Plaintiffs case that he had at no particular point sold or leased the suit property to anyone and thus the sales to the 1st to 3rd Defendants were not only illegal but marred with fraud and illegality. The Plaintiff’s Counsel through pleadings on record informed court that a caution over the suit property had been registered and that the injunctive orders sought were to protect the suit property from further developments or any sub - divisions and sale. In essence the injunction is to stop any further dealings on the suit property.
33. The 3rd Defendant in its application dated 22nd January, 2026 maintains that it is the lawful proprietor of the suit property. That its acquisition of the property from the 2nd Defendant was lawful as per the necessary documents availed confirming the purchase and transfer. The 3rd Defendant stated that it was apprehensive the Plaintiff had the intention of disposing of the suit property as several visits to the property had been noted and the same were by people viewing the property with the intention of purchasing the suit land.
34. It is noted that both the Plaintiff and the 3rd Respondent hold title deeds to the suit property. The court has been put to task in determining who between the parties is the lawful proprietor of the suit property. It is rather evident that this is an issue that cannot be established at an interlocutory stage and based on the evidence that has been availed before this court at this juncture.
35. It is clear that issuing an injunction to either of the parties at this particular point will be akin to confirming that they have presented more tangible evidence on face value that ascertains their ownership and which should not be and id not the case. I am therefore convinced that a different approach ought to be taken by the court at this time other than granting injunctive orders pending the hearing and determination of the suit. By the end of the day, the critical aspect of it all is to continue preservation of the suit land awaiting the hearing and final determination of the main suit. There will be an order that this matter be expedited in the interest of Justice Equity and Conscience in the long run whatsoever.
ISSUE No. b). Whether the parties are entitled to the reliefs sought
36. This being a court or record, it imperative to note that the court acknowledges having issued status quo orders initially on 4th March, 2026. In so doing, it was all in a bid to preserve the property. It must be appreciated that at this interlocutory stage, both parties herein have annexed evidence that they are the respective registered proprietors of the suit property and that in some way, their respective rights as proprietors of the property is being infringed. Two competing titles are thus in play herein.
37. Significant, it is implicit that the status of the suit property be preserved, and that there be no further developments of either temporary or permanent structures, construction, or even alienation or charge of the suit property till this suit is heard and determined.
38. The Black’s Law Dictionary, Butterworth’s 9th Edition, defines “Status quo” as a Latin word which means ‘the situation as it exists’. The purpose of an order of status quo has been reiterated in a number of decisions by High Court. There will be no need to re – invent the wheel whatsoever. For instance, in the case of: “Republic – Versus - National Environment Tribunal, Ex - Parte Palm Homes Limited & Another [2013] eKLR”, Odunga J. stated: -
“When a court of law orders or a statute ordains that the status quo be maintained, it is expected that the circumstances as at the time when the order is made or the statute takes effect must be maintained. An order maintaining status quo is meant to preserve the existing state of affairs...Status quo must therefore be interpreted with respect to existing factual scenario...”
39. In the case of:- “Kenya Airline Pilots Association (KALPA) – Versus – Co - operative Bank of Kenya Limited & another [2020] eKLR”, the purpose of a status quo order was explained as follows: -
“ ... By maintaining the status quo, the court strives to safeguard the situation so that the substratum of the subject matter of the dispute before it is not so eroded or radically changed or that one of the parties before it is not so negatively prejudiced that the status quo ante cannot be restored thereby rendering nugatory its proposed decision.”
40. Additionally, Justice Bashaija Andrew [High Court in Uganda] in the case of:- “Makerere University – Versus - Omumbejja Namusisi Farida Naluwembe Namirembc Bwanga IICMA no. 658 of 2013”, defined status quo to mean; the existing state of affairs existing before a given particular point in time. In case of land, status quo is purely a question of fact, and the relevant consideration is the point in time at which the acts complained of as affecting or likely to affect or threatening to affect the existing state of things occurred. Status quo may thus be in retrospect, as in case of trespass
41. Having expansively discussed the definition and purpose of a status quo order, the next question is the nature of the order and whether it differs from an injunctive order. In the case of:- “Fatuma Abdi Jillo – Versus - Kuro Lengesen & another [2021] eKLR”, It was stated as follows: -
“Murithi Jin Boabab Beach Resort as quoted by F. Tuiyot Saifudeen Abdullahi & 4 Others in Mombasa High Court Misc. Civil Cause No. 11 of 2012, described the nature of a status quo order as follows:
“In my view, an order to Status quo to be maintained is different from an order of injunction both in terms of the principles for grant and the practical effect of each. While the latter is a substantive equitable remedy granted upon establishment of a right, or at interlocutory stage, a prima facie case, among other principles to be considered, the former is simply an ancillary order for the preservation of the situation as it exists in relation to pending proceedings before the hearing and determination thereof. It does not depend on proof of right or prima facie case. In its effect, an injunction may compel the doing or restrain the doing of a certain act, such as, respectively, the reinstatement of an evicted tenant or the eviction of the tenant in possession. An order for status quo merely leaves the situation or things as they stand pending the hearing of the reference or complaint.”
42. Further, in the case of:- “Thugi River Estate Limited & another – Versus - National Bank of Kenya Limited & 3 others [2015] eKLR”, Onguto J. stated that an order of status quo can be given by the court exercising its general jurisdiction and that the order need not necessarily be prayed by the parties and in fact, can be originated by the court.
“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 off acts…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 off acts. 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. It is intended to also freeze the state of affairs. State of affairs however do not always remain static, so it is always crucial for the court to be very specific and neat in its description of what state of affairs is to be preserved.”
43. Onguto J. in the case of “Thugi River Estate Limited (Supra) goes further to set out the proper manner in which the court ought to frame a status quo order, especially where it is one that the court has originated. He stated that:-
“…. Ordinarily where it is the court that has prompted a status quo order or has prompted the parties to it, it is more appropriate and exceedingly relevant to describe clearly the state of affairs at the time the order for status quo is issued. It is undesirable to simply make an order of status quo to be maintained without clearly describing the state of affairs then existing and being preserved. Assistance of the counsel should always be sought in such instances otherwise each party may walk away with its own state of affairs in mind.”
44. In summary from the above cases, the following matters relating to status quo orders are emergent; that status quo orders can be made by the court on its own motion in the exercise of its general jurisdiction; that status quo orders can be issued for the purpose of preserving the subject matter of the property, for case management reasons and in a bid to prevent prejudice from being visited against either party to the case; that status quo orders are different from injunctions, meaning that the considerations to be established for grant of injunctions are not necessary under status quo orders; and that a court originating status quo orders to explicitly frame the state of affairs to be preserved.
45. Thus, it is based on this legal ratio and reasoning that the Honourable Court finds it logical, reasonable and fair to grant the orders of status quo to be maintained by all the parties herein.
ISSUE No. c). Who will bear the Cost of the two applications?
46. It is trite law that the issue of Costs is at the discretion of Court. Costs mean any award that is granted to a party after the conclusion of any legal action, proceedings and/or process in a litigation.
47. The proviso of the Section 27 (1) of the Civil Procedure Act, Cap. 21 holds that Costs follow the events. By events here, it means the results or outcome from the said legal action, proceedings and/or process. In the case of: “Reids Heweet & Company – Versus – Joseph AIR 1918 cal. 717 & Myres – Versus – Defries (1880) 5 Ex. D. 180”, the House of the Lords noted:-
“The expression “Costs shall follow the events” means that the party who, on the whole succeeds in the action gets the general costs of the action, but where the action involves separate Issues, whether arising under different causes of action or under one cause of action, the word ‘event’ should be read distributive and the costs of any particular Issue should go to the party who succeeds upon it.”
48. In the instant case, having carefully considered the twin applications dated 8th January 2026 and 22nd January 2026. The Honourable Court holds that it is reasonable, fair and equitable that each party to bear its own costs.
VIII. Conclusion & Disposition
49. In the long run and after holding in-depth and elaborate analysis of the framed issues herein, this Honourable Court proceeds to make the following findings: -
a. THAT the Notice of Motion applications dated 8th January, 2025 and 22nd January, 2026 be and are hereby partially allowed as follows.
b. THAT the status quo orders to be maintained over the suit property GALU/KINONDO/115 be and are hereby granted in the following specific terms:-
i. There shall be no transaction whatsoever including but not limited to sale, alienation, subdivision, charging, mortgaging, leasing or transferring of proprietary interest of the suit property Title No. GALU/KINONDO/115 until this matter is heard and determined.
ii. There shall be no further constructions or development by the 3rd Defendant on the suit property Title No. GALU/KINONDO/115. and any constructions by the Defendants that is ongoing on the suit property to forthwith cease.
iii. There shall be maintained peace and tranquillity by all the parties and their agents at the suit land Title No. GALU/KINONDO/115 at all times during the pendency of this suit until it is heard and determined.
c. THAT the 4th Defendant directed to register an inhibition pursuant to the provision of Section 68 ( 1 ) & ( 2 ) of the Land Registration Act, No. 3 and Regulation 79 ( 1 ) & ( 2 ) of the Land Registration (General) Regulations , 2017 over the suit property Title No. GALU/KINONDO/115 pending the hearing and determination of the suit.
d. THAT for expediency sake, there be conducted a Pre – Trial Conference on 23rd September, 2016 pursuant to the provision of Order 11 of the Civil Procedure Rules, 2010. There be a hearing on 13th October, 2016 preferably through Physical means before ELC No. 1, Kwale.
e. THAT each party to bear their own costs for both the applications – dated 8th January, 2026 and 22nd January. 2026 respectively.
IT IS ORDERED ACCORDINGLY.
RULING DELIVERED THROUGH THE MICRO – SOFT TEAMS
VIRTUAL MEANS, SIGNED AND DATED AT KWALE THIS ......15TH ……. DAY OF ………..JUNE …….2026
Ruling delivered in the presence of: -
a) Mr. Daniel Disii, the Court Assistant.
b) M/s. Chebeya Advocate holding brief for M/s. Ngige Advocate for the Plaintiff/Applicant.
c) Mr. Borona Advocate for the 2nd & 3rd Defendants/Respondents.
d) No appearance for the 1st & 4th Defendants/Respondents.