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Court of AppealStruck OutApplication dated 22nd May 2025 (Court of Appeal, Nyeri)· [2026] KECA 337 (KLR)

Mariko Mwangi Wainaina v Agnes Wangari Maguta

Court of Appeal of Kenya
27 February 2026
1,088 words in judgment
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The bottom line

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The Court of Appeal struck out an application that tried to overturn a land ruling through interim relief, warning that final orders must wait for the full appeal.

What this practically means

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Executive summary

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The applicant, who obtained judgment in the Senior Principal Magistrate's Court at Kigumo for trespass and eviction over LR No. Loc. 18/Gachocho/415 and its subdivisions, was aggrieved by a ruling of the Environment and Land Court at Murang'a (Gacheru, J.) dated 20th May 2025, which ordered the parties to maintain the status quo pending the hearing of the respondent's appeal. He filed a notice of appeal and then an application dated 22nd May 2025 seeking, among other things, the reversal or vacation of the ELC orders. The Court of Appeal at Nyeri held the application incompetent on three counts: it purported to be brought under Order 42 rule 1 of the Civil Procedure Rules, which does not apply to the Court of Appeal; it was not brought under any rule of the Court permitting interlocutory applications; and it sought final, dispositive orders in an interlocutory application. Applying Equity Bank Limited v. West Link Mbo Limited, the Court reiterated that interlocutory applications exist only to preserve a status pending an appeal, not to pre-empt it. It characterised the application as an appeal disguised as an interlocutory application, struck it out with costs to the respondent, and left the applicant free to pursue the intended appeal on the merits. The decision binds lower courts and parties: final relief cannot be smuggled into the Court of Appeal through interlocutory applications founded on inapplicable rules.

Key legal issues

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01

Whether Order 42 rule 1 of the Civil Procedure Rules can ground an application in the Court of Appeal

Holding

It cannot; that rule does not apply to applications in the Court of Appeal, and the application was not founded on any rule of the Court permitting interlocutory applications

Reasoning

The Court noted the application purported to be brought under Order 42 rule 1 of the Civil Procedure Rules, which governs first-instance and appellate proceedings in the subordinate and High Court layers, not the Court of Appeal. It further observed the application was not brought under any rule of the Court of Appeal permitting interlocutory applications, and thus was fundamentally misconceived in its procedural foundation.

p. 1
02

Whether final orders can be granted in an interlocutory application

Holding

They cannot; the Court cannot reverse or vacate the decision of the superior court in an interlocutory application, as that would leave nothing to be heard in the intended appeal

Reasoning

Relying on Equity Bank Limited v. West Link Mbo Limited, the Court reiterated that interlocutory applications exist only to preserve a status pending appeal. The prayer to reverse the ELC's status quo order was final and dispositive; granting it would determine the appeal in advance and render the appellate process nugatory. The Court characterised the application as an appeal disguised as an interlocutory application.

p. 2

Legal principles established

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  • The Court of Appeal does not entertain ex parte applications; all parties must be heard.
  • An interlocutory application in the Court of Appeal seeks to preserve the subject matter pending appeal and cannot be used to obtain final, dispositive orders.
  • An application seeking final orders through an interlocutory application, founded on rules of court that do not apply to the Court of Appeal, is incompetent and will be struck out.

Court orders

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  1. 1.The application dated 22nd May 2025 is struck out
  2. 2.Costs of the application to the respondent
On appeal from
Environment and Land Court, Murang'a
null
Jurisdiction invoked
Court of Appeal Rules; the applicant purported to invoke Order 42 rule 1 of the Civil Procedure Rules, which the Court held does not apply to it

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mariko Mwangi Wainaina v Agnes Wangari Maguta", Case Analysis (2026). Application dated 22nd May 2025 (Court of Appeal, Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/337/eng@2026-02-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.