1.For its determination before this Honorable Court is the Notice of Motion application dated 23rd November, 2021 and filed on 25th November, 2021 by the Plaintiff/Applicant. The application is brought pursuant to the provisions of Sections 1A, 1B and 3A of the Civil Procedure Act, Cap. 21 and Order 40 Rules 1 & 3 and Order 51 of the Civil Procedure Rules, 2010. The Plaintiff seeks for the following orders:-a)Spend;b)That this Honorable Court be minded to issue an order of prohibition, prohibiting Charge, mortgage, transfer or any dealings with the property known as LR. No. Mombasa/mwembelegeza/726 pending further orders of this Court.c)That this Honorable Court be minded to issue mandatory injunction directed to the Defendants by themselves, agents and/or servants to immediately vacate the suit premises known as LR. No. Mombasa/mwembelegeza/726 pending further orders of this Court.d)That this Honorable Court be minded to direct that the OCS Bamburi Police Station to oversee the implementation of the orders herein.e)That the Costs of this application be provided for.
2.It will be noted that alongside the Plaint, the Plaintiff filed this instant application. However, none of the 1st, 2nd and 3rd Defendants herein have filed their defence todate. As an indication that proper service was effected by the Plaintiff, the 1st and 2nd Defendants entered their appearance.
II. The Plaintiff/Applicant’s case
3.The application is premised on the grounds, testimonial facts and the averments of 22 Paragraphed Supporting Affidavit of DANSON KAMAU MBURU sworn and dated 23rd November, 2021 together with seven (7) annextures marked as “DKM - 1 to 7” annexed thereof. He deponed that he was an adult male of sound mind, well conversant with the facts of this matter and hence competent to swear this affidavit. He averred that sometimes in the year 2010 one Mr Mbarak Salim Said, the Vendor herein, and him entered into a sale agreement for the sale of all that parcel of land known as Land Reference Numbers Mombasa/mwembelegeza/726 (Hereinafter referred to as “The Suit land”) terms and conditions stipulated thereof. the plaintiff annexed the sale agreement for the sale and purchase of the suit property and a Title deed.
4.He stated that upon complying with all the terms of the agreement the Vendor executed the transfer forms for the suit land while he made all the payments thereof. He posited that he was the registered owner of the suit property and he took possession of the same. He informed court that at the time of purchasing it, there only consisted of incomplete commercial buildings and which the same remained in that state as he searched for funds to complete the same. He retained a Caretaker on the property who maintained it. Ho
5.However, he asserted that in the year 2019, the Defendants herein entered the premises and commenced unauthorized activities on the property. This led him lodging a complain at the Bamburi police and Kenya Power & Lighting Company due to the illegal connection of electricity at the subject matter and who did disconnect the electricity. But the trespass escalated the year of 2021 and the Defendants through their agents made further demolitions of the constructions on the suit land causing extensive damages. He informed Court that the 1st Defendant was summoned by the police. He alleged that he was an agent of the 2nd Defendant who had a lease with the 3rd Defendant. He refuted having ever leased or transferred the suit property to any party, Hence, the Defendants were trespassers. Thus, the Defendants were warned by the Officer In Charge of the police Station (OCS) for them to desist from any further acts of trespass on the suit land.
6.Despite all these warnings, the Plaintiff claimed, the Defendants had entered the suit property and set up a club. He had again reported the matter to the police. The Plaintiff urged the Honorable Court to grant the orders sought because he continued to suffer damages as he could not utilize the suit property.
III. The 1st & 2nd Defendants Case
7.On 7th February, 2022, the Counsels for the 1st and 2nd Defendants herein, the Law firm of Messrs. Birir & Co. Advocates opposing the application, filed a two (2) points Grounds of Opposition, dated 4th February, 2022. They averred that:-a)The application lacked ground to stand on. It was an abuse of the Court process as the parties mentioned as the 1st & 2nd Defendants had no connection whatsoever with the suit property.b)That the application was misconceived, fatally defective, bad in law and should be struck out.
8.On 8th February, 2022, 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, the parties had not filed their written submissions. Nonetheless, upon the lapse of the stipulated timeline, Court has decided to render its ruling accordingly.
V. Analysis & Determination
9.This Court has considered all the issues raised in the Notice of Motion application dated 23rd November, 2021, the Supporting affidavit and the grounds of opposition by the 1st and 2nd Defendants herein dated 4th February, 2022. In a order to arrive at an informed, just, fair and reasonable decision, the Court has framed the following issues for its determination. These are:-a)Whether the Notice of Motion application dated 23rd November, 2021 meets the established threshold for granting temporary or mandatory injunction orders.b)Whether the order of Mandatory injunction sought can be granted at the interlocutory stage.c)Whether the parties are entitled to the relief Sought.d)Who will bear the Cost of the application
ISSUE No. a). Whether the Notice of Motion application dated 23rd November, 2021 meets the established threshold for granting temporary or mandatory injunction orders.
The Brief facts
10.Before embarking on these issues of analysis, the Honorable Court feels it imperative to provide brief facts of the case. From the filed pleadings, this suit was instituted by way of a Plaint filed on 25th November 2021. The Plaintiff holds being the registered owner of the suit having purchased it in the year 2012. He stated that at the time of purchase, the suit property comprised of incomplete housing units, and he was in the process of sourcing funds to complete the same. He pleaded that the Defendants entered the suit property and demolished part of the walls and he had consequently, reported them to Bamburi Police Station. The Plaintiff further claimed that this continued trespass by the Defendants had caused him losses in revenue as he could not complete the developments for rental purposes. It was for these reasons that the Plaintiff prayed for judgment against the Defendants for inter alia orders of mandatory injunction, prohibition from entering the suit property, and an order of eviction of the Defendants from the suit property. It will be noted that despite service having been effected, its only the 1st and 2nd Defendants who entered appearance and filed some grounds of opposition. The 3rd Defendant has not filed anything. These issues will be dealt with at some stage later on.
11.As indicated, the application was brought under Order 40 Rules 1 and 3 of the Civil Procedure Rules, 2010. The Law stipulates as follows:-“[Order 40, rule 3.] Consequence of breach.(1)In cases of disobedience, or of breach of any such terms, the court granting an injunction may order the property of the person guilty of such disobedience or breach to be attached, and may also order such person to be detained in prison for a term not exceeding six months unless in the meantime the court directs his release.(2)No attachment under this rule shall remain in force for more than one year, at the end of which time, if the disobedience or breach continues, the property attached may be sold, and out of the proceeds the court may award such compensation as it thinks fit, and shall pay the balance, if any, to the party entitled thereto.(3)An application under this rule shall be made by notice of motion in the same suit.
12.In addition, this application was also brought under the provisions of Sections 1A, 1B and 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.
13.From a quick glimpse of the pleadings, the orders sought in this application are an order of prohibition, prohibiting the charge, mortgage, transfer or any dealing with the suit property and a mandatory injunction directed to the Defendants to vacate the suit property. From the facts presented, it is clear that the Plaintiff has “Prime Facie” evidence on being the registered and absolute owner of the suit property and hence entitled to the temporary orders sought.
ISSUE No. b). Whether the order of Mandatory injunction sought can be granted at the interlocutory stage.
14.Under this sub – heading, for clarity sake, it is important to critically assess the two forms of injunctions herein. A mandatory injunction is different from a prohibitory injunction. While a prohibitory injunction the Applicant must, as was stated in the celebrated case of “Giella v Cassman Brown & Co. Ltd  EA 358, establish the existence of a prima facie case with high chances of success, and that he would suffer irreparable loss/damage which could not be adequately compensated by an award of damages if the injunction was not granted, and further that the balance of convenience tilted in his favour. For the orders of mandatory Injunction, an Applicant must in addition, establish the existence of special circumstances. Furthermore, the applicant must prove the case on a standard higher than the standard in prohibitory injunctions.
15.Generally, an Applicant is entitled to be granted the Permanent and/or Mandatory Injunction restraining the Defendant herein on his suit property. Unlike Temporary Injunction which are granted only to be in force for a specified time or until the issuance of further orders from Court, Permanent Injunction are rather different, in that they are perpetual and issued after a Suit has been heard and finally determined.
16.Legally, permanent Injunction fully determines the right of the Parties before the Court and is normally meant to perpetually restrain the commission of an act by the Defendant in order for the rights of the Plaintiff to be protected. This Court has the powers to grant the Permanent Injunction under Sections 1A, 3 & 3 A of the Civil Procedure Code if it feels the right of a Party has been fringed, violated and/or threatened as the Court cannot just seat, wait and watch under these given circumstances.
17.It’s the effect of the order that matter as opposed to it mere positive working which makes it mandatory. The circumstances under which the Court would grant a Mandatory Injunction was well stated out by the Court of Appeal in the Case of “Malier Unissa Karim v Edward Oluoch Odumbe  eKLR as follows:-
18.Further the same Court of appeal in the case of “Jay Super Power Cash and Carry Limited v Nairobi City Council and 20 others CA 111/2002” held that:-In the case of ‘Kenya Breweries Ltd & Another v Washington O. Okeya  eKLR, the Court of Appeal stated as follows on mandatory injunctions.
19.Additionally, in the case of ‘Nation Media Group & 2 Others v John Harun Mwau  eKLR, the Court of Appeal said:-
20.The above-cited cases lay down the principles of law to be considered in both an application for a prohibitory injunction and mandatory injunction, the different that stands out between these two orders is that for mandatory injunction, the applicant must establish the existence of special and exceptional circumstances that warrant the granting of orders of mandatory injunction.
21.In this instant application, the Plaintiff through his affidavit in support of the application together with the annextures demonstrated that he purchased the suit property and subsequently was registered as the proprietor of the suit property. The plaintiff alleges that there are developments on the suit property. He annexed photographs of the ‘club’. However, it is unknown whether those developments are indeed on the suit property. In addition to this, the Plaintiff has claimed that the Defendants have been trespassing into his land to undertake illegal activities such as the illicit connection of electricity. He averred that he reported this to Kenya Power who consequently disconnected the electricity. The Plaintiff has annexed a letter from Kenya Power confirming the same, however, it is not clear whether the connection and subsequent disconnection were on the suit property or another property. The Plaintiff has also claimed that the defendants demolished the already developments that were on the suit property and this was reported to the police. These allegations have neither been proven nor was a copy of the police Observation Book annexed.
22.On their part, the 1st and 2nd Defendants herein only filed grounds of opposition claiming to be strangers to the allegations. They stated that they have no connection to the suit property. The Plaintiff annexed a letter from the KPLC with the reference being ‘Illegal Connection of Electricity at Mwembe Legeza, Bamburi’. The letter was addressed to the Plaintiff. In that letter, the KPLC stated that they provided service cable and further connected electricity to a property as per an application by the 1st Defendant. The KPLC further informed the Plaintiff that they had disconnected the said electricity supply as per his letter addressed to Kenya Power Customer Service Engineer.
23.Paradoxically, this Court has noted that although the 1st and 2nd Defendants contended that they had no connection to the suit property but they still applied for electricity connection from the KPLC. It is also unclear whether the ‘club’ as seen from the photographs is situated on the suit property. There is no evidence of the alleged demolished buildings/houses that were allegedly already on the suit property. In the absence of a survey report or even a scene visit, it is impossible to ascertain whether the alleged encroachment and trespass is on the suit property. In the given circumstances, therefore, neither the conditions for the grant of prohibitory injunction nor the grant of mandatory injunction have been met.
ISSUE c). Whether the parties are entitled to the relief sought.
24.Despite this, it must be appreciated that at this interlocutory stage, the Plaintiff has annexed evidence that he is the registered proprietor of the suit property and that in some way, his right as a proprietor is being infringed. It is implicit that the status of the suit property be preserved, and that there be no further development, construction, or even alienation or charge of the suit property till this suit is heard and determined.
25.The Black’s Law Dictionary, Butter Worth’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. In the case of “Republic v National Environment Tribunal, Ex-parte Palm Homes Limited & Another  e KLR, Odunga J. stated:-
26.In the case of “Kenya Airline Pilots Association (KALPA) v Co-operative Bank of Kenya Limited & another  e KLR, the purpose of a status quo order was explained as follows:
ISSUE No. b). Whether the parties are entitled to relief sought
27.Under this Sub heading, apart from preserving the substratum of the subject matter, It is my view that an order of status quo is a case management strategy, where the court will be keen to prevent prejudice as between the parties to a matter pending the hearing and determination of the main suit. In this instant application, there is a development, (club) that the Plaintiff claim belong to the Defendants and is situated on the suit property. The Plaintiff prays that the 1st, 2nd and 3rd Defendants vacate the suit property. The Plaintiff has also shown that he is the registered proprietor of the suit property. However, as earlier stated it is impossible without a survey report or a scene visit to tell whether the said club is located on the suit property. Both parties as it stands have an interest that needs to be preserved pending the determination of this suit. To meet the end of justice, neither party should be prejudiced.
28.Having 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 v Kuro Lengesen & another  eKLR”, It was stated as follows:-
29.Further, in the case of “Thugi River Estate Limited & another v National Bank of Kenya Limited & 3 others  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.
30.Odunga 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;
31.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.
ISSUE No. c). Who will bear the Costs of the application
32.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. The proviso of the Section 27 (1) 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 instant case, having carefully considered the application filed on 23rd November, 2021, its decided that the costs to be in the cause.
IV.Conclusion & Disposition
33.In long run and after holding indepth analysis of the framed issues herein, this Honorable Court proceeds to make the following findings. These are:-a)That the Notice of Motion application dated 23rd November, 2021 partially succeeds only to the extent that there be status quo to be maintained on the suit land meaning there shall be no transaction whatsoever including but not limited to alienation, charging, mortgaging, leasing or transferring of proprietary interest of the suit property until this matter is heard and determined.b)That for expediency sake, this matter be fixed for hearing and final determination within the next one hundred and eighty (180) days from this date hereof. There shall be a Mention on 18th October, 2022 for purposes of conducting a Pre Trial Conference under Order 11 of the Civil procedure Rules and fixing of a hearing date thereof.c)That there shall be no eviction of any party from the suit property; andd)That there shall be no further constructions or development by the Defendant on the suit property and any constructions by the Defendants that is ongoing on the suit property to forthwith cease.e)That there shall be maintained peace and tranquility by all the parties and their agents at the suit land at all times during the pendency of this suit until it is heard and determined.f)That costs to be in the cause.
34.IT ORDERED ACCORDINGLY.