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ELCPartially AllowedVihiga High Court Civil Appeal (ELC) – Notice of Motion dated 30th January 2025 (appeal number not stated)

Mudavadi v Nasibu Holdings Limited (Environment and Land Appeal E002 of 2025) [2025] KEELC 3851 (KLR)

High Court of Kenya (Environment and Land jurisdiction, Vihiga)
15 May 2025
1,799 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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A status quo order in Kenya only freezes the current situation; it cannot evict anyone or hand back land possession.

What this practically means

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Executive summary

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This is a ruling of the High Court at Vihiga (E. Asati, J) on a Notice of Motion dated 30th January 2025 by the Appellant, Nelson Chagenya, in an appeal against an interlocutory ruling of the trial court in Vihiga PM MCLE NO. E055 OF 2024, a land dispute over L.R.N. Maragoli/bugina/1XX5. The Applicant sought (i) maintenance of status quo ante 24th September 2024, when he was in possession of the suit land, and (ii) stay of proceedings in the lower court pending appeal. The Respondent opposed, arguing the appeal was fatally defective for want of leave, that the Supporting Afidavit was sworn by a deponent without locus standi, and that the stay test was unmet, pointing out the Applicant had ejected him unlawfully in July 2024 and the trial court had restored him to possession. The court held that a status quo order merely preserves an existing situation and cannot effect removal of a party and handing over of vacant possession; since the position as at 24th September 2024 had been altered by a court order which is itself the subject of the appeal, that relief was unavailable. On stay of proceedings, applying the stringent test in Kenya Wildlife Service v James Mutembei and the nugatory principle in Niazsons, the court found no prejudice to the Respondent, who remains in occupation, and allowed the application partly, staying further proceedings in the lower court suit pending determination of the appeal. Directions were given for the record of appeal to be filed and served before a mention on 12/6/2025. Each party was ordered to bear its own costs of the application.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Supporting Afidavit sworn on behalf of the Applicant is defective (including whether leave to appeal was required)
  2. 2.Whether the Appellant has demonstrated substantial loss
  3. 3.Whether the application is merited and deserving of the orders sought

Key legal issues

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01

Defectiveness of Supporting Afidavit and leave to appeal

Holding

The affidavit objection fails; the orders appealed against fall within Order 43(4) as appeals as of right, and affidavits other than a Verifying Afidavit may be sworn on behalf of a party by anyone possessed of the facts

Reasoning

Counsel for the Applicant relied on Circuit Business Systems Ltd v County Government of Siaya on leave, and Peter Onyango Onyiego v Kenya Ports Authority on affidavits sworn on behalf of parties. The Respondent's objection that the deponent lacked locus standi and that no leave was sought did not persuade the court, which did not disturb the appeal on those grounds.

p. 2
02

Whether status quo ante order should issue

Holding

Refused; the status quo as at 24 September 2024 would entail evicting the Respondent, which a status quo order cannot do

Reasoning

The Applicant had taken possession in July 2024 but that state was altered by a court order restraining his entry, which order is the subject of the appeal. Relying on Fatuma Abdi Jillo v Kuro Langesen, the court held a status quo order merely preserves the existing situation and cannot effect reinstatement to possession like an injunction might.

p. 4
03

Whether proceedings in the lower court should be stayed pending appeal

Holding

Granted; the appeal is from an interlocutory ruling and should be disposed of expeditiously, and no prejudice would be occasioned to the Respondent who remains in occupation

Reasoning

Applying Niazsons (K) Ltd v China Road & Bridge Corporation, where the appeal may render the orders made nugatory, stay should be granted. Balancing Kenya Wildlife Service v James Mutembei's stringent test, the court found no prejudice to the Respondent in occupation, and granted stay of further proceedings in the subordinate court suit pending determination of the appeal.

p. 4

Legal principles established

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  • An order of status quo is an auxiliary preservation order distinct from an injunction and does not require proof of a right or prima facie case
  • A status quo order cannot be used to restore possession removed by a court order
  • Stay of proceedings is a grave judicial action with a high and stringent test

Court orders

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  1. 1.Stay of further proceedings in Vihiga PM MCLE NO. E055 OF 2024 granted pending the hearing and determination of the appeal
  2. 2.Appeal to be mentioned on 12/6/2025 for directions; record of appeal to be filed and served before then
  3. 3.Each party to bear own costs of the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Vihiga Principal Magistrate's Court
Vihiga PM MCLE NO. E055 OF 2024
Jurisdiction invoked
Articles 23 and 40 of the Constitution of Kenya, 2010; sections 1A, 1B and 3A of the Civil Procedure Act; Order 40 Rules 6 and 7 and Order 50 Rule 1, Civil Procedure Rules 2010

Relief refused

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Order for status quo ante 24th September 2024 (Appellant retaining exclusive possession of L.R.N. Maragoli/bugina/1XX5)

Ordering status quo as prayed would require removing the Respondent from the land and handing over vacant possession, which is not the function of a status quo order; the position as at 24 September 2024 had been changed by a court order which is the subject of the appeal

p. 3

Costs

Each party to bear own costs of the application.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The application therefore succeeds partly in that an order of stay of further proceedings of the lower court case No VIHIGA PM MCLE NO. E055 OF 2024 is hereby granted pending the hearing and determination of the appeal herein.
p. 4Disposition – stay of proceedings granted
To order for status quo as prayed will involve removal of the Respondent from the land and handing over of vacant possession to the applicant. That is not the function of an order of status quo.
p. 3Limits of a status quo order
Each party to bear own costs of the application.
p. 4Costs
Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation.
p. 4Test for stay of proceedings

Issues in the judgment

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minor

Replying Afidavit sworn date precedes the application it opposes

minor

Respondent's submissions dated 11th March 2024 predate the 30th January 2025 application

minor

Appeal/case number of the present matter not stated in the ruling

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mudavadi v Nasibu Holdings Limited (Environment and Land Appeal E002 of 2025) [2025] KEELC 3851 (KLR)", Case Analysis (2025). Vihiga High Court Civil Appeal (ELC) – Notice of Motion dated 30th January 2025 (appeal number not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3851/eng@2025-05-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.