Ahmed v Mohiddin & another (Environment and Land Case 470 of 2011) [2025] KEELC 642 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the 2nd defendant's preliminary objection (functus officio and abuse of process) defeats the 1st defendant's application dated 22nd November 2024.
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.
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.
Whether the objection can be determined as a pure point of law without evidence.
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.
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.
Costs of the preliminary objection.
The 1st defendant, having lost, is to bear the 2nd defendant's costs under section 27 of the Civil Procedure Act.
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.
Legal principles established
#- 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
#- 1.The 2nd defendant's preliminary objection has merit and is allowed.
- 2.The 1st defendant's application dated the 22nd November 2024 is hereby struck out.
- 3.The 1st defendant to bear the 2nd defendant's cost in the preliminary objection.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.