Thamaini v Thamaini & 2 others
The bottom line
#Kenya's Court of Appeal stopped an eviction, confirming you can get protection while your appeal is heard if eviction would be irreversible.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The ground that the trial court improperly exercised its discretion in refusing an injunction on sub judice grounds raises a substantial question of law and is not idle; the appeal is arguable on that score alone.
The court noted the applicant's assertion that the trial court improperly exercised its discretion by refusing an injunction because the dispute was sub judice in ELC No. E258 of 2020. It found the issue weighty, raising a substantial question of law requiring interrogation, and declined to say more to avoid embarrassing the bench that would hear the main appeal.
Whether the appeal would be rendered nugatory absent an injunction
The 1st respondent had issued an eviction and demolition notice and disconnected water and electricity, and these assertions were uncontroverted; eviction and demolition would be irreversible, rendering a successful appeal nugatory.
The court found it undisputed that execution had commenced through an eviction and demolition notice dated 4th April 2022 and disconnection of utilities. The 1st and 2nd respondents did not controvert these assertions. Since eviction and demolition would be irreversible even if the appeal succeeded, the nugatory principle was satisfied.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy the twin principles of an arguable appeal and that the appeal would be rendered nugatory absent the orders sought.
- An arguable appeal need not be one that will necessarily succeed; it suffices that it is not frivolous or idle.
Court orders
#- 1.An order of injunction restraining the 1st respondent, her agents and servants from evicting the applicant and his family, interfering with their quiet use and enjoyment, entering upon, demolishing structures or interfering with developments on Nairobi/Block 97/2347 pending the hearing and determination of the appeal
- 2.Costs of the motion to be in the intended appeal
- On appeal from
- High Court of Kenya at Nairobi
- ELC Case No. 246 of 2021
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (with Articles 25(c), 48 and 50(1) of the Constitution, Section 3A Civil Procedure Act and Order 42 Rule 1 Civil Procedure Rules also cited)
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Naipe Ene Nkere & 2 Others v Tipina Enole Nkere[2026] KECA 1729 (KLR)25 Sept 2026applied
Cite this brief
#Cite this brief
Caselaw, "Thamaini v Thamaini & 2 others", Case Analysis (2022). Civil Application E225 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1093/eng@2022-10-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.