Wakoyo & 87 others v County Government of Mombasa & another
The bottom line
#The Environment and Land Court dismissed 88 Mombasa residents' bid to block eviction, ruling that once a case is struck out, protection must be sought from the appeal court.
What this practically means
#Executive summary
#Key legal issues
#Whether an injunction/stay can issue in the trial court pending an intended appeal after the petition has been struck out
No. Once the petition was struck out as res judicata, nothing remained on which to ground the injunction; the proper forum for preservation pending appeal is the appellate court.
The court noted the petition was struck out on August 4, 2020 as res judicata following the Court of Appeal decision in Legal Advice Centre. The striking-out order conferred no benefit capable of execution except costs, and returned the parties to their pre-filing position. With no substratum remaining, the court lacked anything to preserve, and any preservation sought pending appeal should be sought in the Court of Appeal.
Whether the court was functus officio as contended by the respondents
The court did not expressly rule on functus officio but effectively agreed there was nothing remaining to ground the application, disposing of it on the merits of the injunction question.
The respondents argued the court, having determined the petition on August 4, 2020, was functus officio unless moved for review or setting aside. The court did not make a express functus officio finding; instead it decided the application on the basis that the striking-out order left nothing to preserve, making the injunction application meritless and dismissible on that basis.
Legal principles established
#- A striking-out order is not a positive order capable of execution; no stay or injunction pending appeal can be grounded on it in the court that struck out the matter.
- Where a suit has been struck out, a party seeking preservation pending appeal should approach the appellate court where the appeal will lie.
Court orders
#- 1.The petitioners' notice of motion dated the August 27, 2020 is without merit and is hereby dismissed.
- 2.The petitioners to pay the respondents costs.
- Jurisdiction invoked
- Articles 22 and 23 of the Constitution of Kenya, 2010 (fundamental rights enforcement jurisdiction, transferred from the High Court)
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.
- Mbulo & another v Nyamwaya (Environment and Land Appeal E003 of 2023) [2026] KEELC 4664 (KLR)[2026] KEELC 4664 (KLR)22 Jul 2026
Cite this brief
#Cite this brief
Caselaw, "Wakoyo & 87 others v County Government of Mombasa & another", Case Analysis (2023). Environment & Land Petition 21 'A' of 2022 (Formerly Mombasa H.C. Petition No. 6 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/17030/eng@2023-04-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.