https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4935

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MAKUENI** **ELCL APPEAL NO. E019 OF 2025** **JANE WANZA MATIKU (Suing as the legal representative and Administrator of the Estate of ALPHONCE M. KIAWA (Deceased) ....................APPELLANT** **-VERSUS-** **KINYILI MULWA NZUE …………………………………........RESPONDENT** **RULING** 1. Before this court for determination is the Notice of Motion dated 10th December, 2025 in which the Appellant/Applicant seeks issuance of the following orders: - 2. **[*SPENT*]** 3. **[*SPENT*]** 4. **THAT pending the hearing and determination of this appeal, a temporary injunction be and is hereby issued restraining the Respondent, his servants, agents, employees or any other persons acting on his behalf from selling, transferring, charging, leasing, fencing, cultivating, constructing on, evicting from, wasting, interfering with, or in any other manner whatsoever dealing with the portion of land measuring approximately 140 metres by 443 metres by 120 metres by 347 metres forming part of Land Parcel No. MAKINDU/KALII/336 the subject of the appeal herein.** 5. **THAT pending the hearing and determination of this appeal, the Land Registrar Makueni County be and is hereby directed to register a restriction and/or inhibition against Land Parcel No. MAKINDU/KALII/336 preserving the aforementioned portion of land which is the subject matter of this litigation.** 6. **THAT this court grants any further order that it deems fit for the ends of justice in this case.** 7. **THAT the costs of this application be in the cause.** 8. The application is premised on the grounds appearing on its face in addition to the supporting affidavit sworn by Jane Wanza Matiku on even date. The deponent averred that the decision herein emanates from the decision of Honourable M. W. Kibe SRM delivered on 6th August, 2025 where it was ordered that the Respondent refunds the sum of Kshs.40,000/= plus costs and interest. It was further averred that the Applicant has lodged an arguable appeal challenging the judgment of the lower court which erroneously invalidated the sale agreement despite clear evidence of execution, consideration, occupation and part performance. 9. The Applicant contended that having been given leave to deposit the decretal sum in court, the Respondent may sell, transfer, charge or alienate the suit land to defeat the appeal. She further contended that the Applicant and her family had been in peaceful occupation of the portion of land that was purchased by the deceased from 1992 till around 2024 when the Respondent unlawfully erected a fence taking away the Applicant’s land and combined it with the unsold part. 10. The Applicant contended that unless the orders sought are granted, the Applicant will suffer irreparable loss while also rendering the appeal nugatory and a mere academic exercise. 11. Opposing the application, the Respondent filed a replying affidavit sworn by himself on 14th January, 2026. He averred that he did not sell any land to the Applicant’s deceased husband in 1993 and that the trial court correctly found that the sale agreement was a forgery. That should the court grant the orders sought, he will suffer substantial loss. He refuted the assertion that he intends to sell the suit property. 12. The application was canvassed by way of written submissions. At the time of writing this ruling only the Applicant had filed her submissions dated 24th February, 2026. 13. On behalf of the Applicant, Counsel submitted that the legal foundation for the orders being sought is Order 42 Rule 6 (6) of the Civil Procedure Rules which empowers an appellate court to grant a temporary injunction for purposes of preserving the subject matter of an appeal. That the court ought to exercise its appellate jurisdiction in a manner that protects the integrity of the appeal. 14. Counsel further argued that the appeal is not frivolous and that a prima facie question had been raised on the long and uninterrupted use of the suit property by the Appellant that rendered the finding that payment of Kshs.40,000/= to the Respondent as being a friendly loan improbable. Counsel contended that the Respondent had not rebutted the Applicant’s lengthy use of the land. It was further contended that should the Respondent sell, charge or transfer the land, no award of damages can restore possession or undo the loss. 15. The sole issue for determination is whether the Applicant has demonstrated the threshold for issuance of the temporary injunctive orders as sought. 16. The governing law in an application for stay of execution pending appeal is Order 42 Rule 6 (6) which provide as follows: - **(6) 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. This Court’s discretion to grant an order temporary injunction pending appeal is guided by the decision of the Court of Appeal in the case of **Venture Capital & Credit Limited vs Consolidated Bank of Kenya Ltd Civil Application No Nairobi 349 of 2003 (174 of 2003 UR)**where the following considerations were outlined: - 2. ***“The discretion will be exercised against an Applicant whose appeal is frivolous (See Madhupaper International Limited vs Kerr (1985) KLR 840. 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*** 3. ***The discretion should be refused where it would inflict greater hardship than it would avoid (See Madhupaper supra).*** 4. ***The Applicant must show that to refuse the injunction would render his appeal nugatory (See Butt vs Rent Restriction Tribunal (1982) KLR 417*** 5. ***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”*** 6. Whereas the Applicants have an undoubted right of appeal from the judgment of this court, the Respondent has an equally undoubted right to enjoy the fruits of its judgment. It is an undisputed fact that the Respondent has already commenced a lawful execution of the decree in the lower court by depositing the decretal amount of Kshs.40,000/= in court as per the order dated 15th October, 2025. 7. The Applicant annexed a copy of the memorandum of appeal as Exhibit “JWM4”. One of grounds of appeal raised therein is that the learned trial magistrate erred in law and fact by dismissing the Plaintiff’s agreement as being unsigned by the Respondent when in fact the Respondent had appended his thumbprint thereon. It is the Applicant’s case that a prima facie case has been demonstrated through the questions raised in the memorandum of appeal which require to be fully ventilated. 8. The Applicant also argued that since the Respondent has commenced execution of the decree, nothing stops him from disposing of, alienating or transferring the suit property. It was argued that should the substratum of the appeal be lost then the appeal will be rendered nugatory. 9. It was further argued that the Appellant and her family have been in long and uninterrupted possession of the suit property a fact which had not been refuted. In **Kenya Shell Ltd v Kibiru [1986] KLR 416**, Platt Ag. J.A. (as he then was) aptly held as follows **“*It is usually a good rule to see if Order XLI Rule 4 of the Civil Procedure Rules can be substantiated. If there is no evidence of substantial loss to the applicant, it would be a rare case when an appeal would be rendered nugatory by some other event. Substantial loss in its various forms is the cornerstone of both jurisdictions for granting a stay. That is what has to be prevented.”*** 1. From the foregoing, it is indisputable that in the event the suit property is alienated to the Respondent and further disposed of or transferred, the Applicant will suffer irreparable loss which cannot adequately be compensated in damages. As demonstrated in the supporting affidavit, the Applicant has been in exclusive possession of the land subject matter of the appeal herein since the year 1992. 2. On the nugatory aspect, the Court of Appeal in **Reliance Bank Limited v Norlake Investments Ltd [2002] 1 E.A. 227** expressed the meaning thereof as follows: - ***“‘nugatory’ has to be given its full meaning. It does not only mean worthless, futile or invalid. It also means trifling.”*** 1. Lastly, the Applicant urged the court to issue an order of inhibition against the suit property. Section 68 (1) of the Land Registration Act, 2012 sets out as follows: - **‘The court may make an order (hereinafter referred to as an inhibition) inhibiting for a particular time, or until the occurrence of a particular event, or generally until a further order, the registration of any dealing with any land, lease or charge.’** 1. It is evident that the application herein has been made for purposes of preserving the suit property in place until the conclusion of the appeal. The objective of an appellate court when determining aninterlocutory application for injunction is to preserve the subject matter of the appeal in order to ensure the just and effective determination of a pending appeal. 2. Ultimately, the Applicant has demonstrated merit in the present application. The same is allowed in terms of prayers 3 and 4. Costs shall abide the outcome of the appeal. It is so ordered. **................................................** **HON. E. O. OBAGA, FCIArb** **JUDGE** **RULING SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS THIS 30TH DAY OF JULY, 2026.** **IN THE PRESENCE OF:** Ms. Isika for Appellant/Applicant. Court assistant - Kilonzo