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ELCDismissedNotice of motion dated 8th January 2021 (ELC, Meru) - lower court case number not stated in judgment· [2021] KEELC 3463 (KLR)

M’inoti Nthai v Naomi Karegi M’imanyara (Legal Representative of Elijah M’imanyara [2021] KEELC 3463 (KLR)

Environment and Land Court
5 May 2021
LMLUCY N. MBUGUA
782 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Once a Kenyan court delivers judgment, it cannot grant injunctions pending appeal; you must seek protection from the Court of Appeal instead.

What this practically means

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Executive summary

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The applicant, who lost in the Environment and Land Court at Meru in a land dispute over LR ABOTHUGUCHI/KATHERI/734 (now subdivided into 5347 and 5348), moved the court by notice of motion dated 8 January 2021 under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 40 rule 1 of the Civil Procedure Rules 2010 and Article 159(2)(d) of the Constitution. He sought a temporary injunction restraining the respondent, her servants, agents and family, from evicting him, entering or interfering with his use and occupation of the land pending the hearing and determination of his appeal, Nyeri Civil Appeal No. 185 of 2020. He alleged that a similar injunction had been in place during the trial, that he remained on and developed the land, and that on 18 December 2020 goons instructed by the respondent trespassed and sprayed his crops, a matter reported at Githongo Police Station. The respondent, Florence Kirumba, opposed the application through her replying affidavit of 12 February 2021, contending that the application and appeal were manufactured to delay the fruits of judgments already entered in her favour, that the issues were previously litigated in ELC Court of Appeal 154/2011 and Meru Succession 50/1996, and that she and her sister, not the applicant, were in occupation. Relying on Bartholomew Mwanyungu & 3 others v Florence Dean Karimi [2019] eKLR, the court held that having rendered its own judgment, it was no longer seized of the dispute and was not the forum for assessing the appeal's prospects. The application was dismissed with costs to the respondent.

Key legal issues

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01

Whether the court can issue a temporary injunction pending an appeal against its own judgment

Holding

No. Once judgment has been delivered the court is no longer seized of the dispute and cannot grant interlocutory relief; the proper forum for relief pending appeal is the appellate court.

Reasoning

The judge reasoned that the applicant's assertion that his appeal has high chances of success cannot be litigated before the court whose judgment is under appeal. The judgment was delivered on 31 October 2019 (stated elsewhere as 28.10.2019), and thereafter the court lacks the jurisdiction to preserve the suit property by injunction; that relief is for the Court of Appeal. Guided by Bartholomew Mwanyungu & 3 others v Florence Dean Karimi, the application was found to lack merit.

p. 2

Legal principles established

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  • A court that has rendered its judgment is functus and cannot grant interlocutory relief in the dispute; an applicant's complaint about the prospects of his appeal belongs to the appellate court

Court orders

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  1. 1.Application dismissed with costs to the respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B and 3A
  • Civil Procedure Rules 2010Order 40 rule 1
  • Constitution of KenyaArticle 159(2)(d)

Cases cited (2)

  • Equip Agencies Limited V 1&M Bank Limited [2017]eKLR
    [2017] eKLR
  • Bartholomew Mwanyungu & 3 others v Florence Dean Karimi [2019] eKLR
    [2019] eKLR
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act; Order 40 rule 1 of the Civil Procedure Rules 2010; Article 159(2)(d) of the Constitution

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (5)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "M’inoti Nthai v Naomi Karegi M’imanyara (Legal Representative of Elijah M’imanyara [2021] KEELC 3463 (KLR)", Case Analysis (2021). Notice of motion dated 8th January 2021 (ELC, Meru) - lower court case number not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3463/eng@2021-05-05

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