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ELCAllowedNotice of Motion dated 21st November 2024 (appeal from Nakuru CM Misc No. 265 of 2022 consolidated with Nakuru CMELC No. 179 of 2022)· [2025] KEELC 4329 (KLR)
Kipkurui (Suing as the Administrator of the Estate of the Late Kipkeori Muyila - Deceased) v Abdi & 2 others (Environment and Land Appeal E062 of 2024) [2025] KEELC 4329 (KLR)
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·~7 min to read original · ~4 min briefThe bottom line
#Kenya's Environment and Land Court in Nakuru protected a family's home from sale or eviction while their land dispute appeal is decided.
What this practically means
#Executive summary
#This ruling by the Environment and Land Court at Nakuru (M. A. Odeny, J) determined a Notice of Motion dated 21st November 2024 in which the Appellant, Peter Muira Kipkurui, sought a temporary injunction and, in the alternative, maintenance of status quo over land parcel Naivasha/Kiambogo/2007 pending the hearing of his appeal against the judgment of the lower court dated 30th October 2024 in Nakuru CM Misc No. 265 of 2022 consolidated with Nakuru CMELC No. 179 of 2022. The Appellant deponed that he resides on the land with his family, that relatives have been buried there, and that he would suffer substantial loss if evicted or if the property were disposed of, rendering the appeal nugatory. The Respondent, Adija Ali Abdi, opposed the application as premature and an abuse of process, contending that execution had not commenced, that any loss was compensable in damages, and that no decree had been annexed. The court framed one issue: whether the Applicant was entitled to a temporary injunction pending appeal. Relying on Order 42 Rule 6(6) and the principles in Patricia Njeri v National Museum of Kenya, Giella v Cassman Brown, Stanley Kang'ethe Kinyanjui v Tony Ketter, Mbuthia v Jimba Credit Corporation, Nguruman v Jan Bonde Nielsen and Amir Suleiman v Amboseli Resort, the court held the appeal arguable and found that the Applicant, who was in undisturbed occupation, could suffer irreparable harm not compensable by damages. The court issued a temporary injunction restraining the Respondents from interfering with the suit property pending the appeal, conditioned on the Appellant filing the record of appeal within 45 days, with costs in the cause.
Key legal issues
#01
Whether the Applicant met the threshold for a temporary injunction pending appeal
Holding
Yes. The Applicant demonstrated an arguable appeal, occupation of the suit property, and potential irreparable harm if the land were sold or he were evicted during the pendency of the appeal.
Reasoning
The court has discretion under Order 42 Rule 6(6) to grant a temporary injunction pending appeal where the appeal procedure has been complied with. Applying the Patricia Njeri principles and Giella v Cassman Brown, the court need only assess arguability of the appeal, not its merits. The Applicant resides on the land with his family, relatives are buried there, and nothing barred the Respondents from evicting him or disposing of the property, so refusal could render the appeal nugatory.
p. 4
Legal principles established
#- An appeal need only be arguable, not certain to succeed; a single arguable ground suffices, and the court on an injunction pending appeal looks at arguability, not the merits.
- The High Court/ELC has power under Order 42 Rule 6(6) to grant a temporary injunction pending appeal where the procedure for instituting the appeal has been complied with.
Court orders
#- 1.A temporary injunction restraining the 1st and 2nd Respondents from entering, selling, disposing of, evicting, demolishing, or interfering with the parcel of land known as Naivasha/kiambogo/2007 pending the hearing and determination of the appeal
- 2.The Appellant shall file and serve the record of appeal within 45 days failing which the injunctive orders shall lapse
- 3.Costs of the application shall be in the cause
- On appeal from
- Chief Magistrate's Court, Nakuru
- Nakuru CM Misc No. 265 of 2022 consolidated with Nakuru CMELC No. 179 of 2022
- Jurisdiction invoked
- Order 42 Rule 6(6) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kipkurui (Suing as the Administrator of the Estate of the Late Kipkeori Muyila - Deceased) v Abdi & 2 others (Environment and Land Appeal E062 of 2024) [2025] KEELC 4329 (KLR)", Case Analysis (2025). Notice of Motion dated 21st November 2024 (appeal from Nakuru CM Misc No. 265 of 2022 consolidated with Nakuru CMELC No. 179 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4329/eng@2025-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.