https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5196

**REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT THIKA** **ELC CASE NO. E170 OF 2025** **FRANCIS WAKAHU THEURI** **……….……..………PLAINTIFF/ APPLICANT** **VERSUS** **JUSTUS MUINDU MUE ……..…………………………..…….. 1ST DEFENDANT** **FRANCIS KANYORI MUNIU ……………………………..….. 2ND DEFENDANT** **NYAKINYUA INVESTMENT LIMITED ……………...….… 3RD DEFENDANT** **EQUITY BANK LIMITED …………………………………..…. 4TH DEFENDANT** **REGISTRAR RUIRU LANDS REGISTRY ………...…...…. 5TH DEFENDANT** **RULING** 1. This Court is tasked with determining the Notice of Motion dated 19th August 2025 in which the applicant seeks the following Orders: 1. *Spent…* 2. *THAT this Honourable Court be pleased to issue an order for stay of execution of the order for payment of costs and decree issued pursuant to the same in Ruiru ELC No. E172 OF 2021 pending the hearing and determination of this application.* 3. *THAT this Honourable Court be pleased to issue an order for stay of execution of the order for payment of costs and the decree issued pursuant to the same in Ruiru ELC No. E172 OF 2021 pending the hearing and determination of this suit.* 4. *THAT this Honourable Court be pleased to issue an order of temporary injunction restraining the Defendants/ Respondents by themselves, agents, workers, servants or anybody claiming through them from entering and or interfering with the suit property land parcel RUIRU/RUIRU EAST BLOCK 2/92 in any form or manner, pending the hearing and determination of this application.* 5. *THAT the OCS Juja Police Station does ensure that the orders are complied with and that peace prevails.* 6. *THAT in the alternative, this Honourable Court be pleased to issue an order that the status quo be maintained on the suit property known as RUIRU/RUIRU EAST BLOCK 2/92 pending the hearing and determination of this application.* 7. *THAT in the alternative, this Honourable Court be pleased to issue an order that the status quo be maintained on the suit property known as RUIRU/RUIRU EAST BLOCK 2/92 pending the hearing and determination of this suit.* 8. *THAT costs of the application be provided for.* 2. The application is premised on the grounds on the face of it and the supporting affidavit of Francis Wakahu Theuri sworn on even date. 3. The Plaintiff/ Applicant contends that on 9th December 2021, they filed Ruiru ELC Case No. E172 of 2021 seeking to be declared as the legitimate owner of RUIRU/RUIRU EAST BLOCK 2/92 (hereinafter ‘the suit property’). 4. The applicant states that at the time of filing Ruiru ELC Case No. E172 of 2021, the valuation of the suit property fell within the pecuniary jurisdiction of the Magistrate’s Court. It is the applicant’s contention that following the valuation conducted on 6th July 2025, the suit property was found to be worth Ksh. 22,000,000/- which exceeded the Court’s pecuniary limits thus necessitating withdrawal of the suit and the institution of this instant suit before this Honourable Court. 5. The Applicant asserts that as a consequence of the withdrawal of Ruiru ELC Case No. E172 of 2021, the Magistrate’s Court awarded costs to the 1st to 4th Defendants. The Applicant states that the 1st Defendant has since served them with a demand for payment of the costs. The Applicant contends that they are presently unable to satisfy the costs, principally on account of the advanced age and ill health of the Applicant, hence the present application. 6. The Applicant asserts that the suit property has been charged to the 4th Defendant by the 1st Defendant. The Applicant contends that the 1st Defendant is in default of its loan obligation and the 4th Defendant is likely to realize the charge to the detriment of the Applicant. 7. The Applicant maintains that the application is made in good faith and that, unless the orders sought are granted, the suit property is likely to be disposed of before the Applicant's claim is heard and determined. 8. The application is opposed. The 1st Defendant filed the replying affidavit of Justus Muindu Mue, sworn on 10th September 2025 while the 2nd and 4th Defendant opposed through their Grounds of Opposition dated 24th October 2025 and 17th October 2025 respectively. 9. The Defendants oppose the application and contend, *inter alia*, that the present proceedings do not arise from an appeal and that the Applicant has therefore improperly invoked the Court's jurisdiction to grant an order of stay of execution. It is their case that the remedy sought is unavailable in the circumstances and that the application is, consequently, misconceived, fatally defective, and an abuse of the process of the Court. 10. Pursuant to the directions of the Court, the application was canvassed by way of written submissions. 11. Having considered the application, the replying affidavit and the grounds of opposition, the filed submissions and the relevant authorities, the key issue that emerges for determination is: whether the applicant has established a proper basis for the grant of the interlocutory reliefs sought. **Analysis and Determination** 12. An interlocutory relief is not an indivisible remedy. It assumes different forms, serves different purposes, and is governed by different principles. The fact that several forms of relief are sought within a single application does not permit the Court to examine them through a single juridical lens. Each prayer must stand or fall based on the legal principles that govern it. 13. In the present application, the applicant seeks *inter alia,* a stay of execution of the decree for costs issued in Ruiru ELC Case No. E172 of 2021, a temporary injunction restraining the 4th Defendant from realising its security over the suit property, and, in the alternative, an order preserving the status quo pending the hearing and determination of the suit. The Court will therefore consider each of those prayers in turn, beginning with the prayer for stay of execution, for it raises a threshold question as to the Court's jurisdiction and the availability of the remedy sought in the circumstances of this case. 14. Courts do not possess an amorphous reservoir of remedial power from which orders may be drawn whenever the equities of a case appear compelling. Judicial authority is both conferred and confined by law. 15. The first task of the Court is therefore not to ask whether the applicant deserves a stay of execution, but whether the law permits the Court to grant one in proceedings such as these. The respondents insist that the remedy is inseparable from appellate jurisdiction and has no place in the instant suit. If that proposition is correct, the prayer for stay must fail at its inception, for jurisdiction cannot be supplied by sympathy nor enlarged by consent. 16. The Applicant invokes sections 1A, 1B and 3A of the Civil Procedure Act. Sections 1A and 1B embody the overriding objective of the Act, while section 3A preserves the Court's inherent jurisdiction. These are provisions of considerable utility, but they are not a wellspring of jurisdiction. The overriding objective guides the exercise of judicial power. It does not enlarge it. Inherent jurisdiction shields the Court from injustice. It does not permit the Court to transcend the limits imposed by law. If the power to stay execution exists, it must be found where the law has chosen to place it. 17. The jurisdiction of the Court to grant an order of stay of execution is principally anchored in Order 42 Rule 6 of the Civil Procedure Rules. The provision stipulates: *“(1) 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, on 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.* *(2) 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; and* *(b) 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) Notwithstanding anything contained in subrule (2), the court shall have power, without formal application made, to order upon such terms as it may deem fit a stay of execution pending the hearing of a formal application.* *(4) For the purposes of this rule an appeal to the Court of Appeal shall be deemed to have been filed when under the Rules of that Court notice of appeal has been given.* *(5) An application for stay of execution may be made informally immediately following the delivery of judgment or ruling.* *(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.”* 18. These provisions are woven around the existence of appellate proceedings and the preservation of the subject matter pending the determination of an appeal. That architecture is not accidental. Procedure is seldom an assemblage of isolated provisions. Its various parts are intended to operate harmoniously and in furtherance of a common purpose. 19. Order 42 Rule 6 creates a coherent procedural code governing interlocutory relief pending appeal. To detach the power of stay from that appellate context would require the Court to disregard the very language by which the jurisdiction is conferred. **20.** The present proceedings are not appellate in nature. They were commenced as a fresh suit following the withdrawal of Ruiru ELC Case No. E172 of 2021 before the Magistrate's Court. Equally, the decree whose execution the Applicant seeks to arrest is not the subject of an appeal before this Court. It remains a decree issued in proceedings that have since run their course. 21. In substance, the Applicant invites this Court, sitting in the exercise of its original jurisdiction, to suspend the execution of a decree arising from separate proceedings. 22. Respectfully, that invitation cannot be accepted. To accede to it would be to transplant a remedy crafted for appellate proceedings into an original suit, thereby extending the reach of Order 42 Rule 6 beyond the limits imposed by its text. 23. Courts do not possess an unconfined discretion to fashion remedies untethered to law. Discretion is the handmaid of jurisdiction, not its creator. Once it is accepted that Order 42 Rule 6 confines the jurisdiction to grant a stay to appellate proceedings, the absence of an appeal becomes fatal to the prayer itself. The prayer for stay of execution is therefore without legal foundation and is declined. 24. That, however, is not the end of the matter. The Applicant further seeks a temporary injunction and, in the alternative, an order preserving the status quo. Those prayers invoke a different jurisdiction and must be determined on their own legal footing. 25. Equity intervenes, not to determine rights in advance of trial, but to preserve them until they can be finally adjudicated. It is for that reason that the law has developed settled principles governing the grant of interlocutory injunctions. 26. Those principles were authoritatively stated in ***Giella v Cassman Brown & Co. Ltd* [1973] EA 358 (EACA)**. An applicant must demonstrate first, a *prima facie* case with a probability of success; secondly, that he stands to suffer irreparable injury which cannot adequately be compensated by an award of damages if the injunction is withheld; and thirdly, where the Court is in doubt, that the balance of convenience tilts in his favour. 27. The Court of Appeal in ***Nguruman Limited v Jan Bonde Nielsen & 2 Others* [2014] eKLR** subsequently explained that these principles are not a miscellany of considerations from which a court may choose at will and stated: *“…* *(a) establish his case only at a prima facie level,* *(b) demonstrate irreparable injury if a temporary injunction is not granted, and* *(c) ally any doubts as to (b) by showing that the balance of convenience is in his favour.* These are the three pillars on which rests the foundation of any order of injunction, interlocutory or permanent. It is established that all the above three conditions and stages are to be applied as separate, distinct and logical hurdles which the applicant is expected to surmount sequentially... If prima facie case is not established, then irreparable injury and balance of convenience need no consideration.” 28. In essence, the principles constitute a structured inquiry in which each requirement builds upon the one before it. A *prima facie* case is the juridical foundation upon which the entire edifice of interlocutory relief rests. Absent that foundation, the superstructure cannot stand, and the Court need not embark upon an inquiry into irreparable injury or the balance of convenience. 29. Applying those principles to the present application, the applicant's case falters at the very first hurdle. A party seeking interlocutory protection must place before the Court sufficient material to demonstrate, at least on a *prima facie* basis, the existence of the right said to be under threat. The applicant has not done so. Beyond the assertion of ownership, no evidence has been placed before the Court to establish either a proprietary interest in, or possession of, the suit property. The Court cannot preserve, by injunction, a right whose existence has not been *prima facie* demonstrated. 30. I am therefore not satisfied that the applicant has established a *prima facie* case with a probability of success. That finding is dispositive of the prayer for a temporary injunction. 31. In keeping with the holding in ***Nguruman* (supra)**, it is unnecessary to consider the questions of irreparable injury or the balance of convenience. For the same reasons, the alternative prayer for an order preserving the status quo is equally unmerited and is declined. 32. Accordingly, the Notice of Motion application dated 19th August 2025 is devoid of merit and is hereby dismissed with costs. It is so Ordered **Dated, signed and delivered virtually at Malindi this 30th day of July 2026** …………………….. **J. M. ONYANGO** **JUDGE** **In the presence of:** Mr. Mboha for the 1st Defendant Ms Waititu for the 4th Defendant Court Assistant: Sifa