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ELCDismissedNot stated in judgment· [2022] KEELC 2421 (KLR)

Abdalla v Kadenge & 3 others (Environment & Land Case 203 of 2014) [2022] KEELC 2421 (KLR)

Environment and Land Court of Kenya (High Court)
11 May 2022
1,279 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cannot grant an injunction to protect your appeal after it has ruled against you; you must go directly to the Court of Appeal.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Malindi (M.A. Odeny J) determined a Notice of Motion dated August 18, 2021 in which the plaintiff, against whom judgment had been delivered in the suit, sought temporary injunctions restraining the defendants from subdividing, alienating, transferring, selling or dealing with Plot No. S.R.2195 Takaungu pending the hearing of her intended appeal to the Court of Appeal, where a notice of appeal had been lodged. The applicant argued that execution of the decree would deprive her of 6 acres of suit land and render the appeal nugatory, while the respondents contended the survey and subdivision of their 8-acre portion was complete and that the application was incompetent. The defendants argued that Order 40 had no application since no suit was pending, and that Order 42 Rule 6(6) applies only where the court is exercising appellate jurisdiction over an appeal from a subordinate court. Applying Bartholomew Mwanyungu & 3 others v Florence Dean Karimi, the court agreed: having heard and determined the suit itself, the court was not exercising appellate jurisdiction and could not grant an injunction pending appeal; the applicant should have moved the Court of Appeal under Rule 5(2)(b). The application was dismissed with costs to the defendants.

Key legal issues

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01

Jurisdiction under Order 42 Rule 6(6) to grant an injunction pending appeal

Holding

The court lacks jurisdiction because the suit was heard and determined in the same court; the applicant must move the Court of Appeal

Reasoning

Order 42 Rule 6(6) authorises temporary injunctions only where the High Court exercises appellate jurisdiction over an appeal from a subordinate court or tribunal. The matter was heard and determined in the ELC itself, so the operative phrases 'exercise of its appellate jurisdiction' and 'an appeal from a subordinate court' exclude the applicant. The proper forum for interim relief pending the intended appeal is the Court of Appeal under Rule 5(2)(b).

p. 3

Legal principles established

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  • Order 42 Rule 6(6) empowers a court to grant a temporary injunction only in exercise of its appellate jurisdiction over an appeal from a subordinate court or tribunal; a court that has already determined the suit first instance has no jurisdiction to grant an injunction pending appeal to the next appellate court.

Court orders

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  1. 1.The application dated August 18, 2021 is dismissed
  2. 2.Costs of the application to the defendants

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(6)
  • Civil Procedure RulesOrder 40
  • Civil Procedure RulesOrder 21 [1]
  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 75

Cases cited (4)

  • Reliance Bank Limited v Norlake Investments Ltd
    (2002) 1 EA 227
  • Bartholomew Mwanyungu & 3 others v Florence Dean Karimi
    [2019] eKLR
  • Venture Capital & Credit Limited v Consolidated Bank of Kenya Limited
    Civil Application No 349 of 2003
  • Joshua Walter Anyango Ogutu T/A Anyango Ogutu & Co Advocates v Barclays Pension Services Limited & another
    [2019] eKLR
Jurisdiction invoked
Order 42 Rule 6(6) of the Civil Procedure Rules, 2010

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, "Abdalla v Kadenge & 3 others (Environment & Land Case 203 of 2014) [2022] KEELC 2421 (KLR)", Case Analysis (2022). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/2421/eng@2022-05-11

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