https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3810

Mutani v Mutemi (Environment and Land Appeal E076 of 2025) [2026] KEELC 3810 (KLR) (18 June 2026) (Ruling) Neutral citation: [2026] KEELC 3810 (KLR) Republic of Kenya In the Environment and Land Court at Meru Environment and Land Appeal E076 of 2025 BM Eboso, J June 18, 2026 Between Joyce Mutani Appellant and Kanyenju Mutemi Respondent Ruling 1.Through the notice of motion dated 29/10/2025, the appellant seeks the following interlocutory orders:1.Spent2.Spent3.That the be a stay of execution of the judgment/decree and all consequential orders made in Githongo ELC Case No E014 of 2023 dated the 24th day of September 2023 pending the hearing and determination of the appeal. [sic]4.Spent5.That this Honourable Court be pleased to issue orders of inhibition prohibiting the transfer, sale and or any dealings/transactions with respects to the suit land LR No Abothuguchi/Makandune/3022 until this appeal is heard and finally determined.6.Spent7.That his Honourable Court be pleased to the issue an order of injunction restraining the defendants/respondents by themselves their agents’ servants and or employees from evicting, and or interfering with the appellant’s peaceful possession and occupation of LR No Abothuguchi/Makandune/3022 pending hearing and determination of this appeal.8.That costs of this application be provided for, 2.The said application is the subject of this ruling. The application is premised on the grounds outlined in the motion and in the applicant’s affidavit dated 29/10/2025 and supplementary affidavit dated 16/1/2025 (sic). It was canvassed through written submissions dated 6/5/2026, filed by M/s J Nelima Advocates. The case of the applicant is that, she has been the registered proprietor of the suit property, land parcel number Abothuguchi/Makandune/3022 [hereinafter referred to as “the suit property”]. She resides on the suit property with her family. She has built permanent structures on the suit land. She has no other home. 3.She further contends that when the suit in the lower court was initiated against her, she filed a defence in which she denied fraud in her acquisition of the suit land and maintained that she got the land legally after following all the procedures. The trial court subsequently rendered a judgment decreeing her eviction from the suit land and issued a permanent injunction restraining her from trespassing or remaining on the suit land. She states that unless the orders sought are granted, she will be evicted and rendered homeless and she will suffer substantial loss. She adds that if the suit land is not preserved, the appeal will be rendered nugatory. 4.On security, she submits that she is ready to deposit in Court Kshs 200,000 [being the equivalent of the purchase price of the suit land] as security. She adds that she is ready and willing to abide by the terms and conditions this court may issue. 5.The respondent opposed the application through a replying affidavit dated 1/12/2025 and written submissions dated 5/5/2026, filed by M/s John Muthomi & Co Advocates. His case is that the application has been overtaken by events because the decree of the trial court has already been implemented by the Land Registrar. He adds that after the suit land was registered in his name, he gifted it to his son-in-law, Julius Mutwiri M’Murithi [the interested party]. It is the case of the respondent that the application does not meet the requirements under order 42 rule 6(2) of the Civil Procedure Rules. He urges the court to reject the application. 6.The interested party was joined to this appeal after he became the registered proprietor of the suit land. He opposed the application through a replying affidavit dated 20/4/2026 and written submissions dated 5/5/2026, filed by M/s John Muthomi & Co Advocates. His case is that the suit property was lawfully gifted and transferred to him after the decree of the trial court had been executed. He contends that he holds an indefeable title under section 26(1) of the Land Registration Act. He adds that the application has been overtaken by events. 7.The interested party contends that granting of the orders sought will highly prejudice his constitutional rights under article 40 of the Constitution and will amount to an unconstitutional deprivation of his right to property. He adds that the application does not meet the criteria under order 42 rule 6 of the Civil Procedure Rules. He urges the court to reject and dismiss the application. 8.The court has considered the application, the responses to the application and the submissions tendered on the application. The application seeks orders of stay of execution, inhibition and injunction. An inhibition is, by and large, an injunctive order barring the registration of dealings in a land register. Consequently, the two key issues that fall for determination in this ruling are:(i)Whether the application meets the criteria for granting an order of stay of execution under order 42 rule 6 of the Civil Procedure Rules; and(ii)Whether the application meets the criteria for granting an ordinary interlocutory injunction under order 42 rule 6(6) of the Civil Procedure Rules. I will be brief in my analysis: 9.Does the application meet the criteria upon which this court exercises jurisdiction to grant an order of stay of execution under order 42 rule 6 of the Civil Procedure Rules? The relevant criteria has been legislated under order 42 rule 6 (2) of the Civil Procedure Rules, which provides as follows:-“No order for stay of execution shall be made under subrule (1) unless—a.the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; andb.such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.” 10.On timeous filing of the application for an order of stay of execution, the court notes that the impugned judgment was rendered on 24/9/2025. The memorandum of appeal was filed on 7/10/2025. The application under consideration was subsequently filed on 29/10/2025. A period of 34 days lapsed between the date of delivery of the impugned judgment and the date of filing the application for orders of stay of execution. Although there was some delay, the delay wasn’t inordinate to warrant closure of the stay relief against the applicant. 11.On substantial loss, the applicant has demonstrated that the suit land hosts her residence. She asserts that she does not have any other home. Her eviction from the suit land while this appeal is pending will render her homeless. The above averments have not been controverted. In the circumstances, the court agrees that the applicant has demonstrated likely substantial loss in the event that she is evicted. 12.On security, the applicant has offered to deposit Kshs 200,000 in court as security. This figure is the sum she allegedly paid to the respondent as purchase price in 2015 [the court notes that the defendant disputed the alleged purchase and contended that it was a fraud]. The respondent and the interested party did not give any counter-proposal or contest the above proposal. In the circumstances, the court takes the view that a reasonable proposal has been made regarding security. 13.The respondent and the interested party contended that the application under consideration has been overtaken by events because the registration of the appellant as proprietor of the suit land has already been cancelled and the suit land has been registered in the name of the respondent and has subsequently been transferred to the interested party. Whereas there is interlocutory evidence that the above two events have taken place, there is also evidence that the appellant still resides on the suit land. Cancellation of the appellant’s title is only one limb of the decree. In the circumstances, the court takes the view that a stay order can properly issue at this point to forestall eviction of the appellant during the pendency of this appeal. 14.Taking all the above into account, the court comes to the finding that the application under consideration meets the criteria for granting an order of stay of execution under order 42 rule 6 of the Civil Procedure Rules. 15.Does the application meet the criteria for granting an interlocutory injunction by a third-tier appellate court under order 42 rule 6(6)? The said legal framework 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.” 16.Over the years, Kenya’s superior courts have developed principles that guide the exercise of the above jurisdiction (see(i)Madhupaper International Limited vs Kerr [1985] KLR 840;(ii)Venture Capital & Credit Limited vs Consolidated Bank of Kenya Ltd; Civil Application No. 349 of 2003 (174 of 2003 UR); and(iii)Butt v Rent Restriction Tribunal (1982) KLR 417). 17.It is enough to state that, the jurisdiction of a first appellate court to grant an interlocutory injunction under order 42 rule 6(6) of the Civil Procedure Rules is a discretionary and equitable one. Secondly, the discretion will not be exercised in favour of an applicant whose appeal is frivolous; the applicant must demonstrate that a reasonable argument can be put forward in support of his appeal. Thirdly, the discretion should be refused where it would inflict greater hardship than it would prevent. Fourthly, the applicant must show that refusal to grant the injunction would render his appeal nugatory. Fifth, the court is to be guided by the principles in in Giella vs Cassman Brown & Company Ltd [1973] EA 358. Lastly, whenever disposing a plea for an interlocutory injunction, the court does not make definitive or conclusive pronouncements on the key issues in the dispute. 18.The court has looked at the memorandum of appeal. The appellant faults the trial court for reaching a finding that the appellant failed to prove that she paid the purchase price yet the sale agreement which was tendered as evidence contained an acknowledgment of receipt of purchase price by the respondent. She also faults the trial court for making findings in favour of the respondent and contends that the respondent did not prove fraud as required by the law. These are arguable grounds of appeal. 19.On the requirements under Giella v Cassman Brown, it has emerged that while aware that the judgment of the trial court had been challenged through this appeal and the present application was pending before this court, the respondent proceeded to gift the suit land to the interested party and transferred it to him. The court cannot rule out the possibility of the interested party disposing the suit land further to remove it from the reach of the appellant in the event that the appeal succeeds. That is precisely what the respondent did in November 2025. In the circumstances, the court finds that the application meets the criteria for granting an interlocutory injunction in the nature of an inhibition order under order 42 rule 6(6) of the Civil Procedure Rules, Secondly, subject to the appellant complying with the requirements on security, she will continue to have possession of the suit land for the limited period that the court will specify. 20.In the end, the application dated 29/10/2025 succeeds and is disposed in the following terms:-a.There shall be a stay of further execution of the judgment and decree in Githongo SPMC E & L Case No E014 of 2023, pending the hearing and disposal of this appeal.b.Pending the hearing and disposal of this appeal, no dealings shall be registered in the land register relating to parcel number Abothuguchi/Makandune/3022.c.Pending the hearing and disposal of this appeal, Joyce Mutani shall continue to have possession of land parcel number Abothuguchi/Makandune/3022.d.Unless extended by the court, the above orders shall lapse upon expiry of seven (7) months from today.e.The appellant shall deposit in court Kshs 200, 000 as security under order 42 rule 6(2) of the Civil Procedure Rules within 30 days from today. In default, the orders granted in (a), (b) and (c) above shall stand vacated.f.Costs of the application shall be in the appeal. DATED, SIGNED AND DELIVERED AT MERU THIS 18TH DAY OF JUNE, 2026.B M EBOSO [MR]ELC JUDGE