Mburu v Karua (Civil Appeal (Application) E211 of 2023) [2025] KECA 1151 (KLR)
The bottom line
#Kenya's Court of Appeal refused to hear a second application for protection over the same judgment, ruling that a party gets only one chance to ask for interim relief.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court has the jurisdiction to entertain a second application under Rule 5(2)(b), this time for a temporary injunction, after an earlier application for stay arising from the same judgment was dismissed
Key legal issues
#Whether the Court has jurisdiction to entertain a second Rule 5(2)(b) application seeking a temporary injunction after a prior stay application on the same judgment was dismissed
The Court has no jurisdiction; res judicata bars the second application since the applicant should have sought the injunction in the earlier application and the considerations for stay and injunction are the same.
The Court identified two ways of viewing the jurisdiction question. First, a similar application (for stay) had already been heard and dismissed. Second, the principles governing stay and injunction are identical, so the relief now sought could and should have been sought in the first application. Since this was not an application for review, res judicata applied, denying the applicant a second bite at the cherry and depriving the Court of jurisdiction.
Legal principles established
#- Where a litigant under Rule 5(2)(b) fails to seek interim relief (such as an injunction) in a first application arising from the same judgment, a subsequent application for that relief is barred by res judicata and the Court has no jurisdiction to entertain it, because the principles governing stay and injunction are the same.
Court orders
#- 1.The application dated 12th July 2024 is dismissed
- 2.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- ELC (OS) No. E006 of 2021
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Temporary injunction restraining the respondent from trespassing on, entering, evicting the applicant from, or interfering with the suit land pending the appeal
The Court lacked jurisdiction because the doctrine of res judicata applied; the applicant should have sought the injunction within his earlier dismissed stay application
Costs
No orders as to costs
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
As this is not an application for review, we think that the doctrine of res judicata applies. The applicant should have applied for the orders within the previous application.
We have come to the conclusion that we do not have the jurisdiction to entertain the matter in the circumstances. We must therefore down our tools, and consequently, we dismiss the application dated 12th July 2024 with no orders as to costs.
Issues in the judgment
#The delivery date appears anomalous relative to the application timeline: the ruling on the earlier application was delivered 5th July 2024 and the judgment is dated 5th June 2025, which is consistent, but the heading 'DATED AND DELIVERED AT NYERI THIS 5TH DAY OF JUNE, 2025' differs from the internal narrative's silence on hearing date; no material contradiction found.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mburu v Karua (Civil Appeal (Application) E211 of 2023) [2025] KECA 1151 (KLR)", Case Analysis (2025). Civil Application No. E107 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1151/eng@2025-06-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.