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ELCDismissedNarok CMCC 200 of 2013 consolidated with Narok CMCC 57 of 2013 (Appeal against judgment; Notice of Motion dated 15th May 2025)· [2025] KEELC 5065 (KLR)

Maleto v Thini (Environment and Land Appeal E008 of 2025) [2025] KEELC 5065 (KLR)

Environment and Land Court
3 July 2025
LGL. Gacheru
3,938 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 15th May 2025 in which Stanley Ole Maleto, the Appellant/Applicant, sought an injunction pending appeal restraining Benard Maina Thini, the Respondent, from selling, developing or interfering with plot No. 304 block 4, pending the hearing of an appeal against the judgment of the trial magistrate in Narok CMCC 200 of 2013 (consolidated with Narok CMCC 57 of 2013) delivered on 13th May 2025. The trial court had declared plot No. 304 block 4 non-existent for want of proof of allotment and restrained the Applicant from interfering with the Respondent's plot No. 305 block 4. The application, anchored on Order 40 Rule 6(6) and Order 42 Rule 6 of the Civil Procedure Rules and Sections 1A and 3A of the Civil Procedure Act, was opposed on grounds that the plot does not exist, no substantial loss was shown, and the draft memorandum of appeal raised no arguable issues. Justice L. Gacheru held that granting an injunction over a plot declared non-existent would, at the interlocutory stage, overturn undisturbed trial findings and determine the merit of the appeal prematurely. Applying Giella v Cassman Brown and related authorities, the court found no prima facie case (no proof of allotment documents), no irreparable loss (any loss quantifiable and reversible by cancellation of dealings), and held the balance of convenience favoured refusal since the Applicant was never in possession and intended to sell the plot. The application was dismissed entirely with costs to the Respondent, and the appeal was directed to be prosecuted expeditiously.

Key legal issues

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01

Whether the Applicant met the prerequisites for an injunction pending appeal in respect of a plot declared non-existent by the trial court

Holding

The application was not merited. Granting an injunction over the plot would, in effect, reverse the trial court's undisturbed finding of non-existence at the interlocutory stage; the Applicant failed to prove ownership, a prima facie case, irreparable loss, or balance of convenience.

Reasoning

The court framed injunction pending appeal as a discretionary order to preserve the subject matter and prevent the appeal becoming nugatory. Applying Giella v Cassman Brown and related authorities, it found the Applicant produced no allotment documents proving ownership of plot 304 block 4, so no prima facie case. Any loss was quantifiable in damages; cancellation of dealings could be reversed on success. The balance of convenience favoured refusal since the Applicant was never in possession.

p. 8
02

Whether an appellate court may grant injunction over property whose existence was negated by the decision under appeal

Holding

No — such an order would overturn, at interlocutory stage, the trial court's finding that the plot does not exist, dealing with the merit of the appeal prematurely.

Reasoning

The trial court had declared plot No. 304 block 4 non-existent and restrained the Applicant from interfering with plot No. 305 block 4. Because that holding had not been set aside or vacated and formed the subject of the appeal, an injunction over the same plot would amount to a merits determination before inter partes hearing, an arbitrary and non-judicious exercise of discretion (Samka Ltd v Mercedes Sachez Rau Tussel).

p. 6

Legal principles established

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  • A court exercising appellate jurisdiction at the interlocutory stage cannot, by granting an injunction over property declared non-existent by the trial court, implicitly overturn findings that remain undisturbed and are the subject of the appeal.
  • An applicant for injunction pending appeal bears the burden of proving a prima facie case with probability of success, irreparable injury not compensable in damages, and if in doubt, the balance of convenience (Giella v Cassman Brown).

Court orders

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  1. 1.The application dated 15th May 2025 is dismissed entirely with costs to the Respondent
  2. 2.The appeal to be prosecuted expeditiously
On appeal from
Chief Magistrate's Court, Narok
Narok CMCC 200 of 2013 (consolidated with Narok CMCC 57 of 2013)
Jurisdiction invoked
Order 40 Rule 6(6) of the Civil Procedure Rules (appellate jurisdiction to grant temporary injunction), Sections 1A, 3A and 3B of the Civil Procedure Act

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Maleto v Thini (Environment and Land Appeal E008 of 2025) [2025] KEELC 5065 (KLR)", Case Analysis (2025). Narok CMCC 200 of 2013 consolidated with Narok CMCC 57 of 2013 (Appeal against judgment; Notice of Motion dated 15th May 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5065/eng@2025-07-03

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