https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5214

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT & LAND COURT AT NAIROBI** **ELC NO. 1565 OF 2014** **NATIONAL SOCIAL SECURITY FUND - PLAINTIFF/APPLICANT** **VS** **PENINAH NTHENYA MBULA - DEFENDANT/RESPONDENT** **RULING** **(In respect of the Defendant’s application dated 4/2/2026)** 1. This ruling is on the Defendant’s application dated 4/2/2026. By which the Applicant is seeking for orders that: 2. The matter be certified as urgent in the first instance. 3. Orders be issued to stay the execution of the proclamation notice issued by Regent Auctioneer, the Plaintiff's agents, from enforcing the notice dated 22/1/2026 pending the hearing of the application herein. 4. An order of temporary injunction restraining the Plaintiff/Respondent, and their personal representatives, auctioneers and agents from interfering, intimidating, harassing, entering upon, taking possession of, trespassing on, alienating or interfering in any way with and by any means whatsoever with the Defendant’s House No. 140/264/22, Nyayo Embakasi Estate Nairobi until determination of the application herein; 5. The Honourable Court may grant any other orders as it deems fit and necessary 6. The cost of this application be provided for 7. The application is premised on the grounds set out on the face of it and on the Defendant’s application of even date. In her Affidavit, the Defendant avers that her earlier motion dated 26/1/2026 was dismissed for non-attendance, occasioned by the Advocate's technical difficulty in accessing the virtual court session. It is contended that the said default ought not to be visited upon the Client, and the Applicant has annexed the said application. She deposes that Regent Auctioneers issued a notice which was set to lapse on 5/2/2026, hence the urgency of the application. 8. The Applicant further deposes that the Plaintiff has irregularly and unlawfully demanded the sum of Kshs. 7,797,214/= through a Proclamation Notice dated 22/1/2026, issued by Regent Auctioneer, without any subsisting order of this Honourable Court authorising such distress. The Applicant contends that the debt does not exist, yet the Plaintiff and the auctioneer have already interfered with the tenant's personal property at House No. 140/264/22, Nyayo Embakasi Estate, Nairobi. She maintains that the suit is still pending pursuant to the Ruling of 11/7/2024, which was determined in her favour. The Applicant prays that the Court do grant orders restraining the Plaintiff, its representatives, agents, and auctioneers from further interfering with the said property pending the hearing and determination of the instant application. 9. The Plaintiff opposes the application by the grounds of opposition dated 9/5/2026, on the grounds that the application is misconceived, incompetent and bad in law, and that it is an abuse of court processes. 10. Pursuant to this Court’s directions, issued by consent of the parties on 5/2/2026, the application was canvassed by way of written submissions. The Plaintiff complied and filed its submissions dated 2/6/2026. The Defendant/Applicant, on the other hand, did not file any submissions. The Court has had the opportunity to read the submissions and considered them in its determination. Analysis and Determination 1. Having considered the Application, the Affidavit in support, the grounds of opposition thereto, and the Plaintiff’s submissions, the issues for determination are as follows. 2. Whether the Defendant is entitled to the orders sought. 3. Who should bear the costs of the application. 4. It is a settled principle of law that parties are bound by their pleadings. The Court of Appeal case of Dakianga Distributors (K) Ltd vs Kenya Seed Company Limited (2015) eKLR which cited the Article “The present importance of pleadings” published in 1960 where Sir Jacob stated; The Court is bound by the pleadings of the parties. It is not part of the duty of court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised. 1. Looking at the Defendant’s Application dated 6th September, 2024, the prayers sought are already spent, save for the prayer for costs. Prayer (b) sought a stay of execution pending the hearing of the application, whereas Prayer (c) sought an interim injunction pending the hearing and determination of the application. Evidently, there are no substantive orders for the court to address. The application is therefore spent. 2. Even if the court were to consider the application, the first prayer seeks to stay execution of the Proclamation Notice issued by the Auctioneers. A stay of execution is provided for under Order 42 Rule 6 of the Civil Procedure Rules, which provides as follows: - 3. No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but the court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, an application being made, to consider such application and to make such order thereon as may to it seem just and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside. 4. No order of stay of execution shall be made under Sub-rule (1) unless 5. 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 undue delay, and 6. 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.” 7. In the instant suit, there is no pending appeal to warrant the issuance of stay orders. 8. As regards the prayer for an interlocutory injunction, the Plaintiff’s suit was dismissed on 28/5/2020. The Plaintiff’s application for reinstatement was likewise dismissed on 11/7/2024. There is therefore no pending suit on which the interlocutory injunction can be anchored. Accordingly, an interlocutory injunction cannot issue. The Application has not been filed in a pending suit, contrary to what is contemplated and prescribed by Order 40 Rule 1 of the Rules, which begins as follows: Cases in which temporary injunction may be granted “When in any suit it is proved by affidavit or otherwise- 1. ………….” 2. I understand the Defendant seeks to challenge the Plaintiff’s proclamation notice, under which the Plaintiff seeks to exercise its powers to distress for rent arrears. The law provides the procedure for doing so. That definitely cannot be done in a closed suit. 3. For the reasons, this Application is not only misconceived but also incompetent. It is hereby struck out, with no order as to its costs. 4. It is so ordered **DELIVERED, DATED AND SIGNED AT NAIROBI THIS 6TH DAY OF AUGUST 2026 VIA MICROSOFT TEAMS.** **J. G. KEMEI** **JUDGE** **Delivered Online in the presence of:** 1. Mr Ojuog HB for Mr Modi for the Plaintiff 2. N/A for the Defendant 3. C/A – Mr Amos