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ELCPartially Allowed· [2025] KEELC 642 (KLR)

Ahmed v Mohiddin & another (Environment and Land Case 470 of 2011) [2025] KEELC 642 (KLR)

Environment and Land Court
19 February 2025
1,348 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Mombasa land court struck out an injunction application, confirming that after final judgment, requests to halt or vary enforcement must go to the Court of Appeal, not the trial court.

What this practically means

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Executive summary

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The 2nd defendant filed a preliminary objection dated 19th December 2024 against the 1st defendant's notice of motion dated 22nd November 2024, contending that the court lacked jurisdiction to entertain the application because it was functus officio having delivered a final judgment (by Omollo J on 31st October 2017) that is the subject of an active appeal, and that the application was an abuse of process. The 1st defendant's motion had sought a temporary injunction restraining construction and wastage on plot 780/VI/MN C.R 2155 (20.5 acres registered in the name of Asila Binti Mwijabu) and the discharge or variation of stay-of-execution orders granted on 20th July 2018, on the ground that the 2nd defendant had taken no steps to prosecute its appeal for seven years while continuing heavy construction on the strength of the stay orders. The court considered only the 2nd defendant's submissions. Applying Mukisa Biscuit, Oraro v Mbaja, Telkom Kenya v Ochanda and Order 42 Rule 6(6) of the Civil Procedure Rules, the court held that applications for injunctions pending appeal lie before the appellate court, not the trial court, so the functus officio doctrine applied. Although the court acknowledged its inherent power under section 3A of the Civil Procedure Act and stated it would favourably have considered discharging the stale stay orders, the functus officio finding meant the proper forum was the Court of Appeal. The preliminary objection was allowed, the 1st defendant's application struck out, and the 1st defendant ordered to bear the 2nd defendant's costs under section 27 of the Civil Procedure Act.

Key legal issues

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01

Whether the 2nd defendant's preliminary objection (functus officio and abuse of process) defeats the 1st defendant's application dated 22nd November 2024.

Holding

The preliminary objection is upheld; the trial court is functus officio after final judgment and cannot entertain an application for injunction pending appeal or discharge of stay orders, which must be sought in the Court of Appeal.

Reasoning

Applying Mukisa Biscuit and Oraro v Mbaja, the court found the objection raised pure points of law. Relying on Telkom Kenya v Ochanda, Order 42 Rule 6(6) CPR and superior court decisions, it held that injunctions pending appeal are for the appellate court. Though section 3A inherent powers could have favoured the 1st defendant's prayer to discharge the 2018 stay orders for non-prosecution of the seven-year-dormant appeal, the functus officio finding forecloses the trial court's jurisdiction.

p. 3
02

Whether the objection can be determined as a pure point of law without evidence.

Holding

Yes; it rests on the court's own record (delivery of judgment and pendency of an appeal), requiring no ascertainment of disputed facts or exercise of discretion.

Reasoning

The court set out the classic Mukisa Biscuit formulation and Oraro v Mbaja's rule that a preliminary objection must not deal with disputed facts or derive from factual information to be tested by rules of evidence. The functus officio ground turns on the existence of the court's own judgment and pending appeal, making it a pure point of law suitable for determination on the objection.

p. 2
03

Costs of the preliminary objection.

Holding

The 1st defendant, having lost, is to bear the 2nd defendant's costs under section 27 of the Civil Procedure Act.

Reasoning

Because the 2nd defendant successfully prosecuted the preliminary objection, costs follow the event under section 27 of the Civil Procedure Act, Chapter 21 of the Laws of Kenya.

p. 3

Legal principles established

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  • A preliminary objection must raise a pure point of law on assumed facts and cannot be raised where facts must be ascertained or judicial discretion exercised.
  • Functus officio prevents re-opening of a matter before a court that rendered the final decision thereon.
  • Under Order 42 Rule 6(6) of the Civil Procedure Rules, applications for injunctions pending appeal are for the appellate court, not the trial court, which is functus officio after final judgment.
  • The court's inherent power under section 3A of the Civil Procedure Act exists to prevent abuse of process and balance parties' rights, but where the court is functus officio the proper forum is the appellate court.

Court orders

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  1. 1.The 2nd defendant's preliminary objection has merit and is allowed.
  2. 2.The 1st defendant's application dated the 22nd November 2024 is hereby struck out.
  3. 3.The 1st defendant to bear the 2nd defendant's cost in the preliminary objection.

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(6)
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 27

Cases cited (9)

  • Mukisa Biscuit Manufacturing Co Ltd versus West End Distributors Ltd
    [1969] EA 696
  • Oraro versus Mbaja
    (2005) 1 KLR 141
  • Telkom Kenya Limited versus John Ochanda (suing on his own behalf and on behalf of 996 former employees of Telkom Kenya Limited)
    [2014] eKLR
  • Kembe versus Sule
    [2023] KEELC 15724 (KLR)
  • Hunkar Trading Company Limited & another versus Family Bank Limited
    [2024] KEHC 2951 (KLR)
  • Patricia Njeri & 3 Others versus National Museum of Kenya
    [2004] eKLR
  • Ngaine versus District Land Adjudication and Settlement Officer, Igembe District and others & 2 others
    [2024] KEELC 13412 (KLR)
  • Equity Bank Ltd vs West Link MBO Ltd
    (2013) eKLR
  • Board of Governors; Moi High School Kabarak & another vs Malcolm Bell
    (2013) eKLR
Jurisdiction invoked
Article 162(2)(b) jurisdiction of the Environment and Land Court; section 3A of the Civil Procedure Act and Order 42 Rule 6(6) of the Civil Procedure Rules considered

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, "Ahmed v Mohiddin & another (Environment and Land Case 470 of 2011) [2025] KEELC 642 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/642/eng@2025-02-19

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