https://new.kenyalaw.org/akn/ke/judgment/keca/2026/964

Nguyo v Watts Auctions & 2 others (Civil Application E721 of 2025) [2026] KECA 964 (KLR) (15 May 2026) (Ruling) Neutral citation: [2026] KECA 964 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E721 of 2025 F Tuiyott, MN Nduma & M Sila, JJA May 15, 2026 Between James Murigu Nguyo Applicant and Watts Auctions 1st Respondent Principals Of Watts Auctions 2nd Respondent Twenty Twenty Ventures Ltd 3rd Respondent (Being an application under Rule 5 (2) (b) of the Court of Appeal Rules, 2022, seeking orders of injunction against the ruling of The Environment and Land Court at Nairobi (C. G. Mbogo, J.) dated 31 July 2025 in ELC NO. E375 OF 2025) Ruling 1.Before us is a motion dated 1st December 2025 brought pursuant to Rule 5 (2) (b) of the Court of Appeal Rules, Article 164 (3) of the Constitution, ‘and all enabling provisions of law.’ The application seeks the following orders which we reproduce verbatim:1.Spent (certification of urgency).2.The Honourable Court be pleased to issue a stay and issue a temporary injunction and/or stay of execution restraining the respondents, their agents, servants, auctioneers or any other any persons acting under their instructions from selling, auctioning or transferring the Appellant’s property known as LR NO. 209/8524/102 (I.R 30259), House 102, Akiba Estate, South C, Nairobi.3.Pending the hearing and determination of the intended appeal, an order of stay of execution and/or interim injunction do issue to preserve the subject property.4.Pending the hearing and determination of the main suit, a temporary injunction be issued restraining the Respondents from interfering with the Applicant's quiet possession of the said property.5.That the costs of this application be provided for. 2.The application is based on the grounds that the applicant is the registered owner of parcel, LR NO. 209/8524/102 (I.R 30259), House 102, Akiba Estate, South C, Nairobi (hereinafter referred to as ‘the suit property’) and is his only home; that some unknown people are visiting the suit property with intention to purchase; that refusal by the Environment and Land Court (ELC) to grant interim relief was based on misapprehension of material facts; that the applicant is a widow aged 85 years and will be rendered homeless and destitute if the auction proceeds and he is evicted; that the applicant is not the borrower of the loan and has not benefited from the funds; that there was no service of statutory notices or notices of redemption contrary to the Land Act and the Auctioneers’ Act; that the ruling of the ELC failed to appreciate these critical facts and constitutional violations under Articles 28, 40, 43, and 57 of the Constitution; that the circumstances reveal substantial miscarriage of justice and warrant this Honourable Court’s intervention; that if the auction is to proceed, the applicant will suffer irreparable damage and anguish that cannot be compensated by damages ; and, that the intended appeal raises serious constitutional and legal issues with high chances of success. 3.The application is supported by the affidavit of the applicant. He has deposed that in 2015, based on trust and promise of payment, he allowed a family friend to use the title to the suit property as security for a loan. His friend however failed to honour their agreement and defaulted on the loan. He deposes that he was never served with any statutory notices as required by the Land Act or the Auctioneers’ Act, and only came to be aware that the suit property was due for auction through a WhatsApp message from a friend. He later saw, in a newspaper, the suit property advertised for sale by auction scheduled for 6 August 2025. He deposes that the ELC declined to grant him injunctive relief, on the basis that no urgency was demonstrated, which according to him, is an error on the face of the record. He therefore seeks this Court’s intervention to review and set aside the said ruling, and issue injunctive relief to preserve the suit property, pending hearing and determination of the suit. 4.Nothing was filed by the respondents in reply to the motion. 5.We have given the motion due consideration and also taken into account the submissions made by the applicant, who is acting in person. 6.From the material presented, we discern that the applicant filed the suit Nairobi ELCLC No. E375 of 2025. In his plaint, he pleaded that he allowed a friend to use the title to the suit property as security, on the promise that he would pay him Kshs.3,000,000/= per year, as consideration for the assistance. He pleaded that this family friend failed to honour the promise and did not pay him any amount and he thus considers the agreement null and void. He further pleaded that this borrower owns 10 acres of land and other attachable assets. He pleaded that he was not served with any statutory notices and only came to know that the 1st respondent had advertised the suit property for sale on 6th August 2025 through a friend. He contended that the intended auction was unlawful and irregular given that no notices were served upon him and that the default is attributable to a third party. In the plaint, he asked for orders for a permanent injunction to restrain the respondents from selling the suit property; a declaration that his rights under the constitution have been violated by the respondents; general damages for mental anguish, emotional distress, and inconvenience; costs; and any other relief the court would deem just and fit to grant. 7.Contemporaneously with the plaint, he filed an application dated 25th July 2025 hoping to obtain interim orders to stop the public auction that was due for 6th August 2025. The application was placed before (Mbogo C.G, J.) ex parte, on 31st July 2025. The learned honourable judge declined to certify the application as urgent and neither did he grant any interim orders. He directed that the application be served and directed the respondents to file their reply within 15 days of service. He further directed that the application be heard inter partes on 28th October 2025. 8.It is apparent that the applicant is aggrieved by the failure of the honourable ELC judge to grant interim relief pending the inter partes hearing of the application. He now wants this court to issue an order of injunction pending hearing and determination of the said application that is pending before the ELC. 9.We sympathise with the applicant, but we regret our inability to substantively deal with the application, or grant the orders sought, as we have not seen any notice of appeal filed. 10.It is trite that the jurisdiction of this Court, under Rule 5 (2) (b) of the Court of Appeal Rules, 2022, is triggered by the filing of a notice of appeal. That provision of the law is drawn as follows:“in any civil proceedings where a notice of appeal has been lodged in accordance with rule 77, order a stay of execution, an injunction or a stay of any further proceedings on such terms as the Court may think just” (emphasis ours). 11.It will be observed from the foregoing, that in civil proceedings, it is upon the lodging of a notice of appeal, that this court would be vested with jurisdiction to issue an order stay of execution, injunction, or stay of further proceedings, under Rule 5 (2) (b) of the Court of Appeal Rules. The rationale behind this rule is not far to find. The Court of Appeal is an appellate court and it is the filing of the notice of appeal that informs the Court that an applicant intends to appeal against a particular ruling or judgment. When no notice of appeal is filed, it cannot be contended that an applicant has any desire to lodge an appeal to this Court, and neither can it be said that there is any pending appeal before this Court. To grant an injunction, stay of execution, or stay of further proceedings, without there being a notice of appeal, would be to grant such orders in a vacuum and without any foundation whatsoever. 12.Thus, for failure to file a notice of appeal, this Court is unable to exercise its powers under Rule 5 (2) (b) of the Court of Appeal Rules and cannot issue an order of injunction as sought by the applicant or even substantively deal with the application. Without a notice of appeal, there is no basis for this Court to interrogate the application herein. 13.For reasons explained above, we have no option but to dismiss this application. 14.The application is hereby dismissed but with no orders as to costs. DATED AND DELIVERED AT NAIROBI THIS 15TH DAY OF MAY, 2026F. TUIYOTT…………..………......…. JUDGE OF APPEAL NDUMA NDERI …..…………………….....JUDGE OF APPEALMUNYAO SILA…………………………....JUDGE OF APPEALI certify that this is a true copy of the originalSignedDEPUTY REGISTRAR