https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5003

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MERU** **ELC APPEAL NO. E011 OF 2026** **JULIUS MATHETA (*Suing as the Legal*** ***Representative of the Estate of the late*** ***JANET CIOMITHEA MATHETA*).........................APPELLANT** **=VERSUS=** **JEREMIAH KOBIA M’MWENDA..................... RESPONDENT** ***[An Appeal against the Ruling of the Senior Resident Magistrate Court at Maua (Hon Dominic Macharia - SRM), rendered on 21/1/2026 in Maua CMC E & L Case No 59 of 2020]*** **RULING** 1. On 20/7/2022, the Senior Resident Magistrate Court at Maua rendered a Judgment in **Maua Environment & Land Case No 59 of 2020**. The Judgment was in favour of the respondent [*Jeremiah Kobia M’Mwenda*] who was the plaintiff in the said case. The defendant was **Ambrose Mwenda Kilimo** who has not been named as a party in this appeal. The appellant in the present appeal, **Julius Matheta**, was not a party to the case at the point of judgment. The dispute in the case revolved around land parcel number **Igembe Central/Akirang’ondu “A”/2128.** 2. Two years subsequent to the delivery of the said Judgment, the appellant filed an application before the trial court, inviting the trial court to: (i) join him as a party to the case; (ii) set aside/vary/review the judgment; and (iii) grant him an injunction restraining the decree-holder against interfering with his proprietory interest in land parcel numbers **Igembe Central/Akirang’ondu “A”/1948** & **2078**. The trial court heard the application and dismissed it for lack of merit vide a ruling dated 21/1/2026. The trial court held that the appellant’s allegations disclosed a new cause of action which ought to be ventilated in a new cause. 3. The post-judgment ruling of the trial court attracted the present appeal, which was initiated through a memorandum of appeal dated 30/1/2026. Through the appeal, the appellant faults the trial court for declining to join him as a party to the case and for failing to set aside the Judgment yet the execution which the decree-holder carried out in enforcement of the Judgment affected his land **[Igembe Central/Akirang’ondu “A”/2078]** and the land of his late wife, Janet Ciomithea Matheta **[Igembe Central/Akirang’ondu “A”/1948]**. 4. Upon filing the appeal, the appellant brought a notice of motion dated 30/1/2026 seeking: (i) an interlocutory injunction restraining the respondent and his agents [including the auctioneers) against entering, remaining upon, cultivating, cutting trees, constructing on, fencing, trespassing upon or interfering with parcel numbers **Igembe Central/Akirang’ondu “A”/1948 and 2078**; (ii) an order staying execution of the judgment rendered on 20/7/2022 and all the consequential orders; and (iii) an order maintaining the status quo as at 17/2/2024 [prior to eviction] in relation to parcel number **Igembe Central/Akirang’ondu “A”/1948** and **2078**. The said application is the subject of this ruling. 5. The application was premised on the grounds outlined in the motion and in the applicant’s supporting affidavit dated 30/1/2026. It was canvassed through written submissions dated 27/4/2026, filed by ***M/s Ngunjiri Michael & Co Advocates***. The case of the applicant/appellant is that he is the registered proprietor of land parcel number **Igembe Central/Akirang’ondu “A”/2078**. Besides that, he is the legal representative of the estate of **Janet Ciomithea Matheta** who is the registered proprietor of land parcel number **Igembe** **Central/Akirang’ondu “A”/1948**. He states that the decree issued in **Maua Chief Magistrate ELC No 59 of 2020** was executed “over parcels of land not forming the subject matter of the suit, thereby occasioning grave illegality”. 6. The applicant argues that his appeal is arguable, pointing out that the appeal raises serious issues of law and constitutional interpretation, including: (i) unlawful eviction; (ii) violation of property rights; and (iii) denial of the right to be heard. 7. The applicant contends that unless the order o stay of execution is granted, the respondent is likely to continue trespassing on, cultivating, and wasting the suit land, rendering the appeal nugatory. He further points out that unless the orders sought are granted, he stands to suffer irreparable loss not compensable by damages, including loss of ancestral land, destruction of crops and displacement from his home. Lastly, he argues that the application was brought without unreasonable delay. He urges the court to grant him the orders sought in the application. 8. The respondent opposed the application through a replying affidavit dated 11/2/2026. In addition to the replying affidavit, the respondent filed a notice of preliminary objection dated 10/2/2026, inviting the court to strike out the application. Having perused and considered the grounds contained in the preliminary objection and taking into account the relief sought in the preliminary objection, the court directed the respondent to canvass the grounds set out in the preliminary objection as part of his grounds of opposition to the application. The respondent subsequently filed written submissions dated 12/2/2026 through ***M/s Katheru Elias Advocate***. 9. The case of the respondent is that the appellant was not a party in **Maua MC ELC No 59 of 2020**. Judgment in the said case was delivered on 20/7/2022. The judgment-debtor in the said suit (Ambrose Mwenda Kilimo) has never appealed against the judgment. The subject matter in the said suit was land parcel number **Igembe Central/Akirang’ondu “A”/2128**. The judgment of the trial court did not affect parcel numbers **Igembe Central/Akirang’ondu “A”/1948** and **2078**. 10. The respondent argues that the allegations made by the applicant constitute a fresh cause of action that ought to be ventilated in a separate suit. It is the case of the respondent that the applicant’s appeal does not stand a chance of succeeding because the applicant was not a party to the suit in the trial court, emphasizing that what the appellant has is a fresh cause of action. 11. In addition, despite the directions which the court gave relating to the preliminary objection, the respondent argues that the appeal should be struck out because the appellant was not a party to the suit in the trial court and has no right of appeal (*locus standi*) in the matter. The respondent contends that the court has no jurisdiction to entertain an appeal by a person who was not a party to the suit in the trial court and terms the appeal and the application an abuse of the court process. He urges the court to dismiss the application and strike out the appeal. 12. The court has considered the application, the response to the application, and the grounds set out in the preliminary objection. The court has also considered the parties’ submissions and the legal frameworks and the jurisprudence relevant to the issues that fall for determination in the application. The following are the issues that fall for determination in the ruling: (i) Whether the preliminary objection dated 10/2/2026 sought the striking out of this appeal; (ii) Whether the criteria for granting an interlocutory injunction by this court when exercising appellate jurisdiction has been met; and (iii) Whether the criteria for granting an order of stay of execution by this court when exercising appellate jurisdiction has been met. I will be brief in my analysis and disposal of the issues. 13. Did the preliminary objection dated 10/2/2026 seek an order striking out this appeal. The target of the preliminary objection dated 10/2/2026 is clearly spelt out in the preamble of the preliminary objection which reads as follows: ***“TAKE NOTICE that the respondent shall at the earliest opportunity and prior to the hearing of the application dated 30th January 2026, raise a preliminary objection on points of law and shall pray that the same be upheld and the application struck out with costs on the following grounds.”*** 1. There is absolutely nothing in the preliminary objection to suggest that it sought an order striking out the appeal. It is clear from a plain reading of the preliminary objection that it sought an order striking out the application dated 30/1/2026. It was for this reason that on 27/4/2026 the court directed that the points outlined in the preliminary objection be canvassed as part of the respondent’s grounds of opposition to the application. Indeed, the court reiterated the same position on 20/5/2026 through the following verbatim order:- ***“On 27/4/2026, the court made an order that the preliminary objection dated 10/2/2025 targeted the application dated 30/1/2026 and directed that the grounds outlined in the preliminary objection were to be canvassed as grounds of opposition to the application. That order has not been reviewed. If the respondent wants to target the appeal, let him bring an appropriate instrument.”*** 1. The court has taken time to pronounce itself on this issue for the umpteen time because through his submissions dated 12/2/2026, the respondent emphatically urged the court to uphold the preliminary objection and strike out the appeal. The court will not strike out the appeal because it has not been moved to do so. If the respondent wants the court to consider a plea for striking out the appeal, that plea must be brought, served on the appellant, and prosecuted. 2. For the above reasons, the finding of the court is that the preliminary objection dated 10/2/2025 did not seek an order striking out the appeal; it sought an order striking out the application dated 30/1/2026. 3. Does the application meet the criteria for granting an interlocutory injunction by this court when exercising appellate jurisdiction? The jurisdiction of this court to issue an interlocutory injunction when exercising appellate jurisdiction is granted by **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. 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)***. 2. 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. 3. The court has looked at the memorandum of appeal, the impugned ruling and the affidavit in support of the application. It is clear from the materials placed before this court that the appellant did not have a claim in the trial court. It is also clear that the judgment of the trial court was not against the appellant and has not been challenged through an appeal by the judgment-debtor. The appellant alleges that while enforcing the judgment of the trial court, the respondent committed tort(s) against him and against the estate of his late wife. Without making conclusive pronouncements at this interlocutory stage, it emerges from the materials placed before this court that the alleged torts are fresh causes of action which the appellant may wish to ventilate on the platform of a fresh suit. 4. Secondly, in Kenya’s civil legal system, an interlocutory injunction is ordinarily anchored on a substantive claim. It is unheard of for a party who never had a claim in the trial court to procure an interlocutory injunction in an appeal arising from a judgment of a lower court. 5. Had the applicant demonstrated that he was a party to the suit in the lower court and further demonstrated that he had a claim upon which to anchor the plea for an interlocutory injunction, the court would evaluate the application on the basis of the other principles, including the principle in ***Giella v Cassman Brown***. Having failed to satisfy the court on the above limb, it will serve no useful purpose to venture into the other principles. 6. For the above reasons, the finding of the court on the second issue is that the application does not meet the criteria for granting an interlocutory injunction by this court when exercising jurisdiction as a first appellate court. 7. 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 (2)** 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—*** 1. ***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; and*** 2. ***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.”*** 3. On timeous filing of the application for an order of stay of execution, the judgment in respect of which a stay order is sought was rendered on 20/7/2022 and was executed in 2024. It related to parcel number Igembe Central/Akirang’ondu “A”/2128. It did not relate to parcel numbers Igembe Central/Akirang’ondu “A”/1948 and 2078. 4. It does emerge that upon enforcement of the judgment, the applicant filed an application in the trial court seeking, *interalia,* an order setting aside the judgment on the grounds that torts were committed on parcel numbers 1948 and 2078 in the process of enforcing the judgment which related to parcel number 2128. The application was dismissed by the trial court on 21/1/2026. He brought this appeal on 30/1/2026 and filed the present application on the same day. 5. The question of timeous bringing of the application must inevitably be considered in the context of the circumstances of the application. Whereas on its face the application appears to have been brought timeously, what emerges from the evidence before court is that the execution in respect of which the stay order is sought happened way back in 2024. 6. On substantial loss, the execution already happened in 2024. If torts were committed during execution, the remedy available to the applicant is in form of damages which are to be sought on the platform of a new suit. 7. Nothing was offered by the applicant in terms of security. 8. Lastly, the context which informed the finding of this court on the question of interlocutory injunction fully applies to the plea for an order of stay. The judgment of the trial court has not been challenged by the judgment-debtor. The applicant was not a party to the suit in the lower court. The allegations made by the applicant disclose a fresh cause of action that he may wish to ventilate through a fresh suit. 9. For the above reasons, the court finds that the applicant has failed to satisfy the criteria upon which this court exercises jurisdiction to grant an order of stay of execution pending the hearing and determination of an appeal before it. 10. The result is that the application dated 30/1/2026 is rejected and dismissed for lack of merit. In tandem with the general principle in **Section 27** of the **Civil Procedure Act**, the applicant shall bear costs of the application **DATED, SIGNED AND DELIVERED AT MERU THIS 23RD DAY OF JULY, 2026.** **B M EBOSO [MR]** **JUDGE**