https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1403

Wambui & another v Kinuthia (Civil Application 686 of 2025) [2026] KECA 1403 (KLR) (10 July 2026) (Ruling) Neutral citation: [2026] KECA 1403 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application 686 of 2025 W Karanja, LA Achode & MB Kairaria, JJA July 10, 2026 Between Ruth Wambui 1st Applicant Teresia Wanjiku 2nd Applicant and Therdrous Chege Kinuthia Respondent (An application for injunction pending the hearing and determination of an intended appeal from the ruling of the Environment and Land Court at Thika (Mogeni J.) delivered on 8th October, 2025 in Thika ELC Case NO. 292 OF 2018) Ruling 1.The litigation leading to the application before us has a protracted and convoluted history dating back to the year 2009. It begins with a trespass on land dispute filed at the Kiambu District Land Disputes Tribunal by Therdrous Chege Kinuthia, the registered owner of LR. No. Thindigua 76/748[as claimant] against Ruth Wambui and Teresia Wanjiku [as objectors] in Dispute No. LND/16/20/22/2009. The Land Dispute Tribunal ruled in favour of the claimant in an award dated 7th January, 2010 and granted the Objectors a right to appeal to the Provincial Appeals Committee within 30 days. The applicants did not appeal to the Appeals Committee. 2.The award was filed in court and adopted as a judgment of the Court in Kiambu Chief Magistrate Land Case No. 1 of 2010 pursuant to which a decree was issued on 11th April 2015. The applicants did not appeal the decision of the magistrate’s court adopting the award. 3.They filed a Judicial Review application dated 22nd June, 2015 High Court JR Suit NO. 185 of 2015, seeking orders of certiorari to move to quash the proceedings and award of the Kiambu Land Dispute Tribunal in Case No. LND/16/20/22/2009. The application for judicial review was dismissed by G. V. Odunga. J [as he then was] on 24th October, 2016. 4.The respondent sought to evict the applicants from the suit premises in execution of the decree at the Chief Magistrate Court at Kiambu but the applicants raised an objection on the basis that the value of the subject land was ksh 65,000,000 which was beyond the pecuniary jurisdiction of the Kiambu Chief Magistrates Court following which the Magistrate transferred the case to the ELC Court at Thika. 5.At Thika the case was given a new number ELC Case No. 292 of 2018 and apparently took a new trajectory away from execution proceedings. The applicants applied to the ELC to re-open the case and set aside the arbitral award and the Decree issued pursuant thereto. That application was heard and dismissed in July 2020. The applicants did not appeal the decision. 6.In March 2025, the applicants applied for review of the order of dismissal made in July 2020. The application for review was declined on 8th October, 2025. 7.The applicants were dissatisfied with (the?) decision disallowing the application for review and desired to appeal to this Court. They filed a notice of appeal dated 9th October, 2025 and followed it with the Rule 5[2] [b] application for injunction [dated 18th November, 2025] under certificate of urgency which is the subject of this ruling. 8.The central question for determination in the application dated 18th November, 2025 is whether Ruth Wambui and Teresia Wanjiku [the applicants] have an arguable appeal which would otherwise be rendered nugatory unless the court issues anorder of injunction to restrain the respondent from dealing with LR. No.Thindigua 76/748[suit property] in any manner adverse to the applicants before the intended appeal is heard and determined. 9.The intended appeal is against the decision made on 8th October, 2025 by [the Hon. Mogeni J] in Thika Environment and Land Court Case No. 292 of 2018 dismissing the applicants’ application dated 27TH March, 2025 which sought to review and set aside an earlier decision made on 23rd July, 2020 by L. Gacheru J. dismissing another application by the same applicants dated 2nd December,2018 in which the applicants had in the main sought:a.(to) re-open the court file in Chief Magistrate Court Kiambu Land Case No. 1 of 2010 and the proceedings of the Land Disputes Tribunal, Kiambu District Dispute No. LND /16/20/22/2009 and the award read on 7th January, 2010;b.(to) set aside the proceedings of the Land Disputes Tribunal, the award of the said Tribunal and the decree of the Magistrate Court of 7th April,2010 and all consequence orders made pursuant to that decree andc.a declaration that land parcel No. L.R Thindigua 76/748 rightfully belongs to the applicants. 10.In the alternative, the applicants asked the ELC to review the findings of the Land Disputes Tribunal in Kiambu District Dispute No. LND/16/20/22/2009 and the award made in favour of Thedrous Chege Kinuthia [Claimant] against Ruth Wambui and Teresia Wanjiku [the Objectors] which was read and adopted by the Kiambu Magistrate Court on 7th April,2010 and make a raft of findings and orders following such review including:a.declaration that Land Title No. Thindigua 76/48 rightfully belongs to the Applicants.b.the Land Disputes Tribunal exceeded its jurisdiction in hearing and determining the reference before it and the award be set aside.c.Thindigua Company ltd, District Land Surveyor Kiambu,and the Chief Land Registrar be joined as Respondents in the suit.d.and be directed by to rectify their respective records and reinstate LR. Thindigua 76/748 to the applicants and e] the office of the Chief Land Registrar and County Surveyor be ordered to move to the ground and correct the boundary between parcel Nos. Thindigua/76/748. 11.In a detailed and well considered ruling, the learned Judge found that the applicants had not met the legal threshold for setting aside the Decree issued by the Chief Magistrate Court Kiambu following the adoption of the award made by the Land Dispute Tribunal or re-opening of the case to warrant the exercise of discretion in the applicants favour and dismissed the application with costs to the respondent. 12.The applicants did not appeal the decision of Gacheru J. made on 23rd July, 2020 and neither did they move from the suit property [LR 76/748 or collect their title deeds from Thindigua Company Ltd. and get a surveyor to show them their rightful parcel [76/ 747] according to the correct map in terms of the Land Dispute Tribunal’s Award dated 7th January, 2010 and the Decree issued on 7th April 2015 by the Chief Magistrate Court-Kiambu following the adoption of the Award. 13.Instead the applicant went back to the ELC Court with the application dated 27th March 2025 by which they pleaded with the Court to review and set aside the ruling and orders issued by Gacheru J on 23rd July 2020 and upon review order a re- hearing of the case or make such other orders to meet the ends of justice. The applicants also requested the court to make other additional orders upon grant of the prayer for review. The application for review was heard and found to be without merit by Hon. Justice Mogeni J who dismissed it with costs in a ruling dated 8th October, 2025. 14.Applications under rule 5 [2] [b] are not novel in this Court.They are quite routine and common place. The said Rule by a long line of precedent grants this Court wide and unfettered discretion to grant stay of execution or proceedings and order injunction on such terms as may be just provided the applicant sequentially demonstrates the existence of an arguable appeal which would otherwise be rendered nugatory unless the order sought was granted. See Stanley Kang’ethe Kinyanjui vs. Tony Ketter & 5 Others [2013] eKLR. 15.Based on the grounds set out in the notice of motion ,the supporting and supplementary affidavits together with the written submissions highlighted before us during the hearing on 23rd February, 2026, the applicants contend that they have an arguable appeal which will be rendered nugatory unless we grant the order sought because the ELC sidestepped and overlooked a jurisdictional issue namely that the Land Disputes Tribunal lacked jurisdiction to hear and determine a dispute relating to the ownership of the suit property and the applicants will be evicted from the suit property unless the respondent is restrained from interfering with or dealing with suit property pending the hearing and determination of the intended appeal. 16.The respondent on his part strongly opposes the application contending that it is not merited as there is no arguable appeal that would be rendered nugatory. He places reliance on his replying affidavit, the further affidavit, and the written submissions as orally highlighted during the hearing of the application on 23rd February, 2026. 17.We have carefully considered the application, the rival contentions of the parties, submissions and cited case law as well as the principles of the law governing the exercise of our discretion to grant an order of injunction under Rule 5[2][b] and have come to the conclusion that the applicants have not demonstrated that they have an arguable appeal. 18.We observe that though the applicants have framed the Proposed grounds of appeal in broad terms of a jurisdictional nature, the application determined by the learned ELC Judge was on a narrow question of review of the 27th July, 2020 decision of the Court dismissing the 2018- application seeking to set aside the 2015 decree of the Magistrate Court issued following the adoption of the Award of the Kiambu District Land Tribunal dated 7th January,2010 and re-open the proceedings including those before the Land Dispute Tribunal. 19.That being our view of the matter it is unnecessary for us to consider whether the intended appeal would be rendered nugatory. 20.In the upshot, we find that the application dated 18th November, 2025 is without merit and is hereby dismissed with costs to the respondent. DATED AND DELIVERED AT NAIROBI THIS 10TH DAY OF JULY 2026.W. KARANJA......................................JUDGE OF APPEALL. ACHODE......................................JUDGE OF APPEAL MURUNGI B. KAIRARIA......................................JUDGE OF APPEALI certify that this is a true copy of the original.Signed.Deputy Registrar