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ELCDismissedNotice of motion dated 29/11/2024 in appeal against Marimanti SPMC E&L Case No. 4 of 2019· [2025] KEELC 2996 (KLR)

Machebe v Muchangi; Attorney General (Interested Party) (Environment and Land Appeal E017 of 2024) [2025] KEELC 2996 (KLR)

Environment and Land Court
27 March 2025
BEB M Eboso
2,012 words in judgment
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The bottom line

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The Environment and Land Court refused to pause a land judgment because the appellant didn't live on the land, delayed, and offered no security.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Chuka (B M Eboso, J) on a notice of motion dated 29/11/2024 filed by the appellant, John Muthee Machebe, in an appeal against the judgment of 20/9/2024 in Marimanti Principal Magistrate's Court MCELC No. 4 of 2019, which had declared the respondent, Josphat Kirimi Muchangi, the legitimate proprietor of land parcel Gituma/336. The applicant sought a stay of execution of that judgment and a temporary injunction restraining the respondent from evicting or harassing him or interfering with his use and occupation of the suit property, contending he was registered through land adjudication and occupied the land, and that the lower court lacked jurisdiction since the respondent should have appealed to the Minister under the adjudication process. The respondent opposed, asserting he had been born on, occupied and used the land since 1971, while the appellant never occupied or developed it. The court framed two issues: whether the application met the Order 42 rule 6(2) criteria for stay and the Order 42 rule 6(6) criteria for an interlocutory injunction on appeal. On the trial record, the appellant had admitted he does not reside on the suit land, so he could not be evicted and could not show substantial loss; no security was offered; and the 80-day delay was unexplained. On the injunction, applying the Giella principles, the appellant failed to establish a prima facie case or irreparable harm against an existing decree, and the balance of convenience favoured the decree-holder retaining possession. The application was rejected with costs to the respondent, the applicant to bear his own costs of the application.

Key legal issues

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01

Stay of execution under Order 42 rule 6(2)

Holding

Stay refused: no substantial loss, no security offered, and the 80-day delay was unexplained

Reasoning

The court examined the trial record and found the appellant does not reside on or occupy the suit land, so eviction-based substantial loss could not arise. He also offered no security, expecting the decree-holder to be ejected while he was installed without security. The application, filed 80 days after judgment, was not made without unreasonable delay and no explanation was tendered.

p. 3
02

Temporary injunction on appeal under Order 42 rule 6(6)

Holding

Injunction refused: Giella criteria not satisfied and balance of convenience favours the decree-holder

Reasoning

The court noted the applicant neither resides on nor has any development on the suit property, and sought an injunction against an existing judgment and decree without justification for being installed into the land pending appeal. The balance of convenience favoured the respondent retaining possession during the appeal, so the first two Giella requirements and the balance of convenience all failed.

p. 4

Legal principles established

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  • A party cannot demonstrate substantial loss by eviction from land he does not occupy
  • The jurisdiction of a first appellate court to grant an interlocutory injunction under Order 42 Rule 6(6) is discretionary and equitable and guided by stated principles

Court orders

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  1. 1.The application dated 29/11/2024 is rejected for lack of merit
  2. 2.The applicant shall bear costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6(2)
  • Civil Procedure RulesOrder 42 rule 6(6)
  • Civil Procedure ActSection 27

Cases cited (4)

  • Madhupaper International Limited Vs Kerr
    [1985] KLR 840
  • Venture Capital & Credit Limited Vs Consolidated Bank of Kenya Ltd
    Civil Application No. 349 of 2003 (174 of 2003 UR)
  • Butt V Rent Restriction Tribunal
    (1982) KLR 417
  • Giella vs Cassman Brown & Company Ltd
    [1973] EA 358
On appeal from
Marimanti Principal Magistrate's Court
MCELC No 4 of 2019
Jurisdiction invoked
Order 42 rule 6(2) and 6(6) of the Civil Procedure Rules (appellate jurisdiction to stay execution and grant temporary injunction)

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, "Machebe v Muchangi; Attorney General (Interested Party) (Environment and Land Appeal E017 of 2024) [2025] KEELC 2996 (KLR)", Case Analysis (2025). Notice of motion dated 29/11/2024 in appeal against Marimanti SPMC E&L Case No. 4 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/2996/eng@2025-03-27

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