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ELCDismissedMalindi ELCA (appeal from Kilifi SPMC ELC No. E017 of 2025)· [2025] KEELC 5064 (KLR)

Menza & another v Micro Enterprises Support Programme Trust & 2 others (Land Case Appeal E032 of 2025) [2025] KEELC 5064 (KLR)

Environment and Land Court
26 June 2025
2,038 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court in Malindi blocked landowners from filing fresh suits on issues already before a court, awarding costs to the lenders.

What this practically means

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Executive summary

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The Appellants appealed against a ruling of Hon. C. Obulutsa, CM dated May 20, 2025, which dismissed their injunction application and the entire suit in Kilifi SPMC ELC No. E017 of 2025, and simultaneously sought an injunction pending appeal restraining the Respondents from dealing with property known as Roka/Uyombo/33. The 1st Respondent raised a Preliminary Objection contending the appeal and application were an abuse of court process. The court traced a litigation history: an earlier suit (Kilifi SPMC ELC No. 203 of 2019) in which an injunction had been granted in 2020; dismissal of that suit for non-attendance on May 2, 2023; refusal to reinstate it, leading to appeal Malindi ELCA No. E024 of 2024; refusal of stay of execution by the appellate court; withdrawal of that appeal; and the immediate filing of the fresh suit while the withdrawal had not yet been adopted. The court held that filing a new suit on the same issues while the earlier appeal remained pending violated Section 6 of the Civil Procedure Act and constituted abuse of process, in effect a device to obtain stay-type relief the higher court had refused. Applying Order 42 Rule 6(6) principles and authorities including Patricia Njeri v National Museum of Kenya and Charter House Investments, the court found the Appellants lacked the good faith necessary to invoke its discretion. The Preliminary Objection was allowed, the injunction application dismissed, and costs awarded to the Respondents.

Key legal issues

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01

Whether the appeal and application were an abuse of court process

Holding

Yes - the suit was filed while the earlier appeal (Malindi ELCA No. E024 of 2024) was still pending, contrary to Section 6 of the Civil Procedure Act, and the new proceedings were a device to obtain relief a higher court had refused.

Reasoning

The court found that when the fresh suit was filed on February 4/5, 2025, the notice of withdrawal of the prior appeal had not yet been adopted (adopted March 6, 2025), so proceedings were still live. Filing a parallel suit on identical issues breached the sub judice rule and was a scheme to obtain a stay/refusal-based injunction the appellate court had already declined to grant.

p. 3
02

Whether an injunction pending appeal should issue

Holding

No - the application failed the Order 42 Rule 6(6) principles; the applicants had not acted in good faith and their appeal was an abuse of process.

Reasoning

Applying the principles in Patricia Njeri & 3 Others v National Museum of Kenya and Charter House Investments Ltd v Simon K. Sang, the court held an injunction is an equitable, discretionary remedy, refused where the appeal is frivolous or the applicant lacks good faith. The Appellants' abuse of process disentitled them to the discretion.

p. 4
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Costs

Holding

Costs awarded to the Respondents.

Reasoning

Having dismissed the injunction application and upheld the Preliminary Objection, the court exercised its discretion on costs in favour of the Respondents.

p. 4

Legal principles established

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  • Filing a fresh suit on the same subject matter while related proceedings are still pending before a higher court violates Section 6 of the Civil Procedure Act and constitutes abuse of court process.
  • Courts possess an inherent jurisdiction to prevent abuse of their process and a duty to stop proceedings that misuse it.
  • An injunction pending appeal is discretionary, not a matter of right, and is refused where the applicant has not acted in good faith.

Court orders

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  1. 1.The Preliminary Objection dated June 12, 2025 is allowed
  2. 2.The application dated 29th May 2025 for an injunction pending appeal is dismissed
  3. 3.Costs awarded to the Respondents

Authorities

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Legislation

  • Civil Procedure ActSection 6
  • Civil Procedure RulesOrder 42 Rule 6(6)

Cases cited (8)

  • Stephen Somek Takwenyi & Another v David Mbuthia Githare & Two Others
    Nairobi (Milimani) HCCC No. 363 of 2009
  • Patricia Njeri & 3 Others v National Museum of Kenya
    [2004] eKLR
  • Charter House Investments Ltd v Simon K. Sang & three others
    [2010] eKLR
  • Madhupaper International Limited v Kerr
    (1985) KLR 840
  • J. K. Industries v KCB
    (1982 – 88) KLR 1088
  • Butt v Rent Restriction Tribunal
    (1982) KLR 417
  • Giella v Cassman Brown & Company Ltd
    (1973) EA 358
  • Shitukha Mwamudo & Others
    (1986) KLR 445
On appeal from
Chief Magistrate's Court, Kilifi (SPMC ELC)
Kilifi SPMC ELC No. E017 of 2025
Jurisdiction invoked
Appellate jurisdiction over appeals from the Chief Magistrate's Court (Environment and Land Court), with the motion under 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, "Menza & another v Micro Enterprises Support Programme Trust & 2 others (Land Case Appeal E032 of 2025) [2025] KEELC 5064 (KLR)", Case Analysis (2025). Malindi ELCA (appeal from Kilifi SPMC ELC No. E017 of 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5064/eng@2025-06-26

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