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ELCStruck OutNot stated in the judgment (plaint dated 12/1/2022)· [2025] KEELC 2995 (KLR)

Mbae (Suing as the legal representative of M’Nkanata M’Njiima) v Tharaka Nithi County Government (Environment & Land Case E001 of 2022) [2025] KEELC 2995 (KLR)

Environment and Land Court
24 March 2025
BEB M Eboso
1,016 words in judgment
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The bottom line

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Once a Kenyan trial court delivers judgment, only the Court of Appeal can grant an injunction pending appeal, not the trial court.

What this practically means

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Executive summary

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The plaintiff, Gladys Kainda Mbae, sued on behalf of the estate of M’Nkanata M’Njiima seeking annulment of the registration of Tharaka Nithi County Government as proprietor of parcels Mwimbi/L.E Magutuni/1714 and 1225, registration of the deceased in their place, or alternatively compensation. On 25/9/2024 Yano J dismissed the suit with costs for failure to prove the case on a balance of probabilities, and the plaintiff lodged a notice of appeal. She then moved this court by notice of motion dated 28/10/2024 under Order 42 of the Civil Procedure Rules and Sections 1A and 1B of the Civil Procedure Act, seeking a temporary injunction restraining the respondent and its agents from evicting her family from the suit parcels pending the intended appeal. The respondent opposed, arguing the court was functus officio and that the application merely delayed it from enjoying its registered land. Eboso J framed two issues: the court's jurisdiction under Order 42 to grant the injunction, and whether the application met the injunction threshold. The court held that, having rendered judgment, it ceased to have jurisdiction to grant interlocutory injunctions under Order 40 as a trial court, and Order 42 confers such power only in its appellate capacity; that jurisdiction now vests in the Court of Appeal under rule 5(2)(b). Applying the Lillian S principle, the court declined to determine the merits and struck out the application with costs to the respondent borne by the plaintiff under Section 27 of the Civil Procedure Act.

Key legal issues

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Jurisdiction of the trial court to grant a post-judgment temporary injunction

Holding

The trial court has no jurisdiction to grant an interlocutory injunction after judgment; only the appellate court can, under Order 42 rule 6(6) and Court of Appeal Rules rule 5(2)(b)

Reasoning

Order 40 governs interlocutory injunctions at trial; once judgment is rendered, the suit is no longer pending before the trial court. Order 42 empowers interlocutory injunctions only when the court exercises appellate jurisdiction. The present application was filed after the court dismissed the plaintiff's suit on 25/9/2024, so the court was functus officio on interim injunctive relief and had to down its tools.

p. 2

Legal principles established

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  • Once a trial court renders judgment, it loses jurisdiction to grant an interlocutory injunction under Order 40; post-judgment interlocutory injunctive jurisdiction on appeal vests in the appellate court under Order 42 rule 6(6) and rule 5(2)(b) of the Court of Appeal Rules

Court orders

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  1. 1.The application dated 28/10/2024 is struck out
  2. 2.The plaintiff/applicant shall bear costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 (including rule 6(6))
  • Civil Procedure RulesOrder 40
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 1B
  • Civil Procedure ActSection 27
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (1)

  • Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd
    [1989] eKLR
Jurisdiction invoked
Order 42 and Order 40 of the Civil Procedure Rules; Sections 1A and 1B and Section 27 of the Civil Procedure Act

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, "Mbae (Suing as the legal representative of M’Nkanata M’Njiima) v Tharaka Nithi County Government (Environment & Land Case E001 of 2022) [2025] KEELC 2995 (KLR)", Case Analysis (2025). Not stated in the judgment (plaint dated 12/1/2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2995/eng@2025-03-24

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