Gikiri v Jama (Environment and Land Appeal E075 of 2024) [2024] KEELC 6937 (KLR)
The bottom line
#A Kenyan landowner appealing a lost case can still get the property frozen, but the court refused to evict the person already living on it.
What this practically means
#Executive summary
#Key legal issues
#Whether an interim injunction may be granted pending appeal
Yes - Order 42 Rule 6 empowers the High Court in its appellate jurisdiction to grant a temporary injunction provided the procedure for instituting the appeal has been complied with; filing a memorandum of appeal satisfies that requirement.
The court relied on Order 42 Rule 6 of the Civil Procedure Rules and its own earlier decision in Umar Auto Garage. Since the Appellant had filed a memorandum of appeal in accordance with Order 42, the procedure for instituting the appeal was deemed complied with, opening the door to an interim injunction if the substantive test was met.
Whether the Applicant satisfied the Giella v Cassman Brown test as adapted for injunctions pending appeal
No. Although the Appellant appeared prima facie entitled to protection as registered owner, she was never in possession, and granting the injunction would effectively evict the Respondent who is in occupation; the application as framed was not merited.
Applying Patricia Njeri & 3 Others v National Museum of Kenya and Giella v Cassman Brown, the court found that damages could not conveniently substitute for possession-based considerations, and that the injunctive orders sought would dispossess the Respondent who had long been in occupation and had erected buildings well before being joined to the proceedings.
What preservation orders should issue instead
A status quo order preserving the suit property pending the hearing and determination of the appeal was appropriate, given the highly contested ownership.
The court invoked its power under Section 13(7)(a) of the Environment and Land Court Act to grant interim preservation orders, Practice Direction 32 of the ELC Practice Directions 2014 encouraging status quo, and the reasoning in Musa Angira Angira v ICDC, holding that conservation of the property best served the overriding interests of justice pending appeal.
Legal principles established
#- Order 42 Rule 6 confers power on the High Court, in exercise of its appellate jurisdiction, to grant a temporary injunction where the procedure for instituting the appeal has been complied with.
- Where an injunction pending appeal is undeserved but ownership is hotly contested, the court may instead issue interim preservation/status quo orders under its inherent and statutory preservation mandate.
Court orders
#- 1.The Parties herein shall maintain the prevailing status quo in respect of the suit property at the time of this ruling.
- 2.The Respondent is directed not to undertake any further constructions on the suit property pending the hearing and determination of the appeal.
- 3.Costs of the application shall be in the cause.
- On appeal from
- Subordinate court (Lower Court)
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules; Section 13(7)(a) of the Environment and Land Court Act (appellate and interim preservation jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gikiri v Jama (Environment and Land Appeal E075 of 2024) [2024] KEELC 6937 (KLR)", Case Analysis (2024). Not stated in the judgment (Appellant's application dated June 4, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6937/eng@2024-09-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.