5.In response to the application, the respondent filed grounds of opposition dated 26/4/2022. It is stated that the application is brought in bad faith, misconceived, vexatious and an abuse of the court process. That the same has no merit as it is geared towards delaying the quick settlement of this suit which is based on the doctrine of adverse possession. That allowing the application is equivalent to determining the main suit which will be prejudicial to the plaintiff. The respondent seeks that the application is dismissed.
7.The respondent’s submissions were filed before court on 14/6/2022 where it is submitted with regard to the prayer for temporary injunction that the applicant has not adduced any evidence to demonstrate that the respondent was alienating or interfering with the suit property. That the respondents claim being premised upon the doctrine of adverse possession, it is preposterous to bar them from the land. That the prayer of injunction should fail given that the respondent has been on the suit property for the past twenty years and even has its office on the suit property.
8.On the prayer for eviction, it is submitted that evicting the plaintiff without giving them an opportunity to ventilate their case will be a miscarriage of justice. Reliance is placed on the holding in Patrick Nthiwa Kyalo Versus Mutua Katumo Nduuti eKLR. In relation to the orders of mandatory injunction sought it is urged that the applicant has not specified the special circumstances warranting the grant of the orders and therefore his claim must fail.
Analysis and Determination
9.Before going into the issues for determination in the instant application and which are mainly whether the applicant should be granted both the temporary and mandatory orders of injunction sought, this court will refrain at this juncture from delving into the merits and demerits of the claim for adverse possession. It is clear that the same forms the basis of the main suit before this court. The parties will fully be heard on the evidence tendered to enable the court conclusively determine the suit. However, what is before court at this interlocutory stage is the application for injunction and this is where focus should be directed.
10.The law on granting of interlocutory injunction is set out under order 40(1) (a) and (b) of the Civil Procedure Rules 2010 which provides: -a."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 [Rev 2012] Civil Procedure cap 21 [Subsidiary] C17 – 165;b.That the defendant threatens or intends to remove or dispose of his property in circumstances affording 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."
12.On establishment of a prima facie case, it is the plaintiff/respondents case that they have been in occupation of the suit property for over 20 years. That the same houses their church offices and form part of their parking lot. In order to get a clear picture of the extend of actual occupation by the plaintiff, I had the benefit of perusing the affidavit in support of the originating summons herein, wherein it is stated that the plaintiff has been in physical occupation and possession of the suit property which measures 0.0465Ha. That during such occupation, the owners of the suit property have never been known until of recent times when it was found out that the land is registered in the names of Norman Njuguna Nganga the defendant/applicant. The applicant on the other hand states that he is the registered owner of the land having been allotted the same way back in the year 1976 culminating into his registration as proprietor as highlighted elsewhere in this ruling.
13.A copy of the title to the suit property is annexed to the applicant’s pleadings to confirm his registration as the proprietor of the suit property. It is also clear that he has not been in occupation of the same. From the photos annexed in the pleadings, the respondents have set up structures on the suit property. A prima facie case has been established as to the ownership of the suit property, however I will be hesitant in pronouncing myself on the issue of trespass as alleged by the applicant. It is noteworthy that the respondent’s occupation of the suit property has not been subject of any dispute between the parties until this particular time when the claim for adverse possession has been filed.
14.On whether the plaintiff stands to suffer irreparable loss, I will be guided by the following holding in Nguruman Limited case (supra)
15.The evidence tendered before court shows that it is the respondent who has been in use and occupation of the suit land. The applicant has not led the court to the evidence that their continued use and occupation of the same has led to any amount of loss on his part. As earlier stated a dispute between the parties herein has only come into play after the originating summons subject of this suit was filed. The applicant has not demonstrated previous attempts to have the applicant move out of the land or the intention to have the land put into any developments for their benefit. Evidently the second test has not been proved by the applicant.
16.In Chebii Kipkoech vs Barnabas Tuitoek Bargoria & Another  eKLR, the court held; -I have already rendered myself on the two grounds for threshold of the orders sought. It is the plaintiff/respondent who is in use and occupation of the land and has made developments on the same as evidenced by the photographs attached to the pleadings. It is imperative that the balance of convenience automatically tilts towards the plaintiffs. I am further guided by the Court of Appeal dictum in Esso Kenya Limited vs Mark Makwata Okiya Civil Appeal No. 69 of 1991:
17.The court has looked at the nature of the prayers sought by the applicant; the court is perfectly within its rights to make orders that would effectually give meaningful relief to any party aggrieved. In doing so, the court is also keen on preservation of the substratum of the subject matter and to prevent prejudice between parties pending the hearing and determination of the main suit. In exercise of its inherent and general jurisdiction as granted by section 3A of the Civil Procedure Act to grant such orders that meet the ends of justice and avoid abuse of the process of court, the court is inclined to order the status quo in this matter be maintained pending the hearing and determination of the originating summons. The court in doing so associates with the following recent holdings of the courts; -TSS Spinning & Weaving; Company Ltd Vs Nic Bank Limited & another  e KLR, which espoused the purpose of a status quo order as follows:
18.In Kenya Airline Pilots Association (KALPA) Vs Co-operative Bank of Kenya Limited & another  e KLR, 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.”
19.The upshot of the foregoing is that I find the applicant has not proved to the required standard that injunctive and mandatory orders together with those of eviction suffice in the present application. The following orders shall issue to dispose of the application.
20.The status quo obtaining from the date of this ruling shall be maintained and there shall be no alienation or further development of the suit property pending the hearing and determination of the suit. Costs shall follow the event.It is so ordered.