Wanjue v Githitu & another (Environment and Land Appeal E204 of 2024) [2025] KEELC 733 (KLR)
The bottom line
#The High Court declined a landbuyer's injunction on appeal because he failed to provide the trial judgment, but froze the property's position with status quo orders.
What this practically means
#Executive summary
#Key legal issues
#Whether the application for injunction pending appeal is barred by res judicata given a similar application in the trial court
The application is not res judicata; the earlier injunction served the trial suit while this one serves the appeal.
Section 7 of the Civil Procedure Act and the five elements in IEBC v Maina Kiai were considered. The trial court's injunction orders were for the purpose of preventing injustice pending determination of the original suit, whereas the orders now sought are pending determination of the appeal. The Court of Appeal in Nyambura v Ndungu is authority that res judicata does not apply where the issue, though determined, is the subject of appeal.
Whether a temporary injunction should issue pending the appeal
The temporary injunction as sought was not granted; the court instead ordered maintenance of status quo pending the appeal.
Guided by Order 42 Rule 6(6), Patricia Njeri v National Museum of Kenya and Giella v Cassman Brown, the court noted the appellant failed to annex the impugned judgment and had not filed a record of appeal, so the court could not appraise the basis of the trial judgment. Balancing the parties' interests under Sections 1A and 1B of the Civil Procedure Act, the court found status quo orders the prudent course.
Legal principles established
#- An application for injunction pending appeal is not res judicata of a similar application made in the suit below, because the cause of action remains alive on appeal.
- A status quo order preserves the subject matter of the dispute as it existed before the mischief crept in, pending determination of the issue in contention.
Court orders
#- 1.That status quo be maintained pending hearing and determination of the appeal
- On appeal from
- Milimani Chief Magistrate's Environment and Land Court
- MCELC No. 1 of 2022
- Jurisdiction invoked
- Order 42 Rule 6(6) of the Civil Procedure Rules (appellate jurisdiction over a subordinate court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wanjue v Githitu & another (Environment and Land Appeal E204 of 2024) [2025] KEELC 733 (KLR)", Case Analysis (2025). Not stated in the judgment (appeal from Milimani MCELC No. 1 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/733/eng@2025-02-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.