https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4868

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT KAJIADO** **ELCLA NO. E039 OF 2026** **MARY WANJIKU GICHUHI…………….....APPELLANT/APPLICANT** **VERSUS** **DICKSON MAGOTSI…………………………………1ST RESPONDENT** **COUNTY GOVERNMENT OF KAJIADO………..2ND RESPONDENT** **RULING** *(Being an Appeal from the Ruling of Honourable Charles Kutwa, (Chief Magistrate) at the Chief Magistrate’s Court, Ngong delivered on 7th May 2026)* 1. In the **application** dated **19th May 2026** the Plaintiff prays inter alia for the following orders; 2. **THAT a Mandatory Injunction do issue from this Honourable Court to restrain the Respondents themselves, their agents and servants from interfering with, continuing to construct, develop, approving any construction and /or development plans on Plot No.27 Business and Plot No.322 Residential Ole Ole Kasasi Trading Centre pending the Hearing and Determination of the Appeal herein.** 3. **THAT the Officer in charge of Ole Kasasi Police Post do ensure compliance of the said Orders.** 4. The application was supported by the affidavit of Mary Wanjiku, in which she deposed that the suit property was allocated to her late husband by the County Council of Kajiado on 24th October 1986. That this court had earlier issued inhibition orders in respect of the suit property in Kajiado ELC 490 of 2017 which was later transferred to Ngong Law Courts for hearing. 5. The applicant deposes that upon the unwarranted dismissal of the suit in the lower court it is essential that the court issue a mandatory injunction to preserve the nature, features and documentation of the suit property. The Respondents did not file any response to the application neither did they file any submissions. 6. On their part the Applicant urged the court to allow the application so as to enable the Appellant to prosecute the appeal which is merited in view of the Survey Report of Mr Okoth Charles Angire County Surveyor which the learned magistrate failed to summon to appear. 7. Having considered the application and responses filed the sole issue for determination is whether the application for injunction pending appeal is merited. 8. This court has the requisite jurisdiction to grant an order of injunction under section 13 (7) of the [Environment and Land Court Act](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/act/2011/19) NO. 19 of 2011 which provides that; *In the exercise of its jurisdiction under this Act, the Court shall have the power to make any order and grant any relief as the Court deems fit and just, including—(a)interim or permanent preservation orders including injunctions;* 1. This Court is further empowered to grant a temporary injunction pending appeal under **Order 42 Rule 6(6) of the Civil Procedure Rules** which provides as follows; *“Notwithstanding anything contained in Subrule (1) of this Rule, the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.”* 1. Justice Alnashir Visram in the case of **Patricia Njeri & 3 Others V National Museum of Kenya [2004] eKLR**. stated; “*In the Venture Capital case, the Court of Appeal said that an order for an injunction pending appeal is a discretionary matter. The discretion must, however, be "exercised judicially and not in whimsical or arbitrary fashion." This discretion is guided by certain principles some of which are as follows:’* *(a)The discretion will be exercised against an Applicant whose appeal is frivolous* ***(See Madhupaper International Limited vs Kerr (1985) KLR 840 (cited in Venture Capital****). The Applicant must state that a reasonable argument can be put forward in support of his appeal (****J****.* ***K. Industries vs KCB (1982 – 88) KLR 1088*** *(also cited in Venture Capital)* *(b)The discretion should be refused where it would inflict greater hardship than it would avoid (See Madhupaper supra).* *(c)The Applicant must show that to refuse the injunction would render his appeal nugatory (See Butt vs Rent Restriction Tribunal (1982) KLR 417 (cited also in Venture Capital).* *(d)The Court should also be guided by the principles in Giella vs Cassman Brown & Company Ltd (1973) EA 358 as set out in the case of Shitukha Mwamodo & Others (1986) KLR 445 (also cited in Venture Capital*). 10. In the Court of Appeal case [**Trust Bank Limited & Another vs. Investech Bank Limited and 3 others**](http://resolver.caselaw.kenyalaw.org/resolver/akn/ke/judgment/keca/2000/38) **[2000] eKLR,** the court posited; “*The jurisdiction of the Court under rule 5 (2) (b) is original and discretionary and it is trite law that to succeed an applicant has to show firstly that his appeal or intended appeal is arguable, to put another way, it is not frivolous and secondly, that, unless he is granted a stay the appeal or intended appeal, if successful will be rendered nugatory. These are the guiding principles but these principles must be considered against facts and circumstances of each case*…” 1. Although the Applicant application was unchallenged and uncontroverted, the Applicant still has to discharge the burden of proof as envisaged by Sections 107 and 108 of the Evidence Act 2. Guided by the foregoing principles I find that in considering whether to grant an injunctive relief pending appeal the court considers whether the appeal is arguable, and secondly that it will be rendered nugatory if the injunction is not granted. 3. The Applicant did not attach the Ruling/ Order dismissing the suit at the lower court. This court is therefore left to ponder what could have transpired before the court. Further in the affidavit there is no attempt to explain the reasons for dissatisfaction with the proceedings in the Magistrates Court. The Appellant states that the Survey Report would have changed the trajectory of the case. Again, this is not explained and is left to the court to fill in the gaps. 4. It is imperative that a party seeking to have discretion exercised in their favour gives a candid and detailed explanation which I find the Appellant did not do. I therefore find that the application is not merited and is dismissed with no orders as to costs as it was undefended. The appeal should be expeditiously set down for hearing. **Dated, Signed and Delivered virtually at Kajiado this 27th day of July 2026.** **JUDY OMANGE** **JUDGE.** **IN THE PRESENCE OF:** Mr Muia for the Appellant/ Applicant Peter – Court Assistant.