Josephine Kagiri v M'Mwirichia M'Guatu & Another
The bottom line
#A Kenyan court cannot grant an injunction to protect land pending your own appeal against its judgment; only the Court of Appeal can.
What this practically means
#Executive summary
#Key legal issues
#Whether the court has jurisdiction to grant a temporary injunction pending an appeal against its own judgment
It does not; Order 42 Rule 6(6) applies only where the court sits in appellate jurisdiction over a subordinate court or tribunal. Having rendered judgment on July 12, 2023, the court became functus officio.
Order 42 Rule 6(6) empowers the High Court to grant a temporary injunction in the exercise of its appellate jurisdiction provided the procedure for appeal from a subordinate court is complied with. The plaintiff sought an injunction pending appeal against this court's own judgment, so the rule is inapplicable. Relying on Bartholomew Mwanyungu, Tahir Sheikh Said Investments and Chembe Katana Changi, once judgment is rendered the court is functus officio; the plaintiff must move the Court of Appeal under Rule 5(2)(b).
Legal principles established
#- A trial court that has delivered judgment becomes functus officio and cannot grant a temporary injunction pending an appeal against its own decision; the proper forum is the appellate court under Rule 5(2)(b) of the Court of Appeal Rules.
Court orders
#- 1.Notice of Motion dated September 4, 2023 dismissed
- 2.Costs of the application awarded to the 2nd defendant
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 63(c) and (e) of the Civil Procedure Act; Order 40 Rules 1, 2, 3 & 4 of the Civil Procedure Rules; Articles 50(1) and 159(2)(d) of the Constitution; considered under Order 42 Rule 6(6) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Josephine Kagiri v M'Mwirichia M'Guatu & Another", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3648/eng@2024-01-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.