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ELCPartially AllowedNot stated in the judgment (Appeal from the trial court; application dated 2nd February 2025)· [2025] KEELC 1298 (KLR)

Wakesho v Ali & another (Environment and Land Appeal E001 of 2025) [2025] KEELC 1298 (KLR)

Environment and Land Court
18 March 2025
1,433 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused an injunction and cost stay but froze the Voi plot's position as at 10 December 2024 until the appeal is decided.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Voi (E. K. Wabwoto, J) on the Appellant's application dated 2nd February 2025 in an appeal against a trial court judgment delivered on 10th December 2024, which dismissed her claim over Plot No. 11 in Voi Township with costs. The application sought a temporary injunction restraining the Respondents from interfering with the suit premises pending appeal, and a stay of enforcement of the costs order. The Applicant, Juliana Jane Wakesho, averred she purchased the plot in 2002 from the 2nd Respondent under an agreement of sale, but that the unsurveyed plot remained allotted in the 2nd Respondent's name. The 1st Respondent, Abdulrahman Ahmed Ali, opposed, contending he purchased the plot in 2017 for Kshs 1,200,000 from Harry Mwambile Righa, who had bought it from the 2nd Respondent, and that the Applicant, resident in the United Kingdom, never occupied the property. The court found jurisdiction under section 13(7) of the Environment and Land Court Act and Order 42 Rule 6(6) of the Civil Procedure Rules, and applied the principles in Patricia Njeri v National Museum of Kenya, drawing on Giella v Cassman Brown. It held the Applicant had not clearly demonstrated physical occupation and refused the injunction, but found the appeal not frivolous and ordered maintenance of the status quo as at 10th December 2024 pending the appeal. The stay of the costs order was refused as no execution process had been commenced or threatened. Costs of the application were ordered to abide the outcome of the appeal.

Key legal issues

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01

Whether the threshold for a temporary injunction pending appeal was met

Holding

Not met for an injunction; the court instead ordered maintenance of the status quo as at the date of the trial judgment pending the appeal, finding the appeal not frivolous

Reasoning

The court restated the principles for injunctions pending appeal from Patricia Njeri & 3 Others v National Museum of Kenya, drawing on Giella v Cassman Brown. Although the Applicant claimed to be a bona fide purchaser, she did not clearly demonstrate physical occupation, which the 1st Respondent contested. Balancing the parties' interests, the court preserved the position as at the date of the trial judgment rather than granting an injunction.

p. 3
02

Whether stay of enforcement of the trial court's order of costs should be granted

Holding

Refused because no execution process had been threatened or commenced

Reasoning

Upon perusal of the affidavits, the court found no evidence of any actual threat or commencement of execution of costs by the Respondents. Absent such demonstration, the discretionary relief of a stay of enforcement could not be granted at that stage.

p. 3

Legal principles established

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  • An injunction pending appeal is a discretionary order granted to preserve the subject matter of the appeal and ensure the appeal, if successful, is not rendered nugatory, guided by principles including a prima facie case and potential irreparable harm.
  • The ELC has jurisdiction to grant interim preservation orders including injunctions under section 13(7) of the Environment and Land Court Act, and to grant a temporary injunction pending appeal under Order 42 Rule 6(6) of the Civil Procedure Rules.
  • Where an injunction is not established, the court may order maintenance of the status quo to balance the parties' interests pending appeal.

Court orders

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  1. 1.An order be and is hereby issued that the status quo currently pertaining to the suit premises Plot No. 11 situate within Voi Township as at December 10, 2024 be maintained pending the hearing and determination of the appeal herein.
  2. 2.Costs of this application to abide the outcome of the appeal.

Authorities

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Legislation

  • Environment and Land Court Act No. 19 of 2011section 13(7)
  • Civil Procedure RulesOrder 42 Rule 6(6)

Cases cited (7)

  • Patricia Njeri & 3 Others v National Museum of Kenya
    [2004] eKLR
  • Madhupaper International Limited vs Kerr
    (1985) KLR 840
  • J. K. Industries vs KCB
    (1982 – 88) KLR 1088
  • Butt vs Rent Restriction Tribunal
    (1982) KLR 417
  • Giella vs Cassman Brown & Company Ltd
    (1973) EA 358
  • Shitukha Mwamodo & Others
    (1986) KLR 445
  • Venture Capital case
On appeal from
Trial court (magistrates' court)
Jurisdiction invoked
Section 13(7) of the Environment and Land Court Act No. 19 of 2011 and Order 42 Rule 6(6) of the Civil Procedure Rules

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, "Wakesho v Ali & another (Environment and Land Appeal E001 of 2025) [2025] KEELC 1298 (KLR)", Case Analysis (2025). Not stated in the judgment (Appeal from the trial court; application dated 2nd February 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1298/eng@2025-03-18

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