Olal v Jay Jay Holdings Limited (Environment and Land Miscellaneous Application E051 of 2025) [2025] KEELC 5407 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether to grant a mandatory injunction reinstating the applicant into the suit property pending appeal
The mandatory injunction was refused because exceptional circumstances were absent; execution under a decree is not exceptional and the applicant should have sought stay of execution
The court applied the Kenya Breweries v Okeyo test, drawing on Halsbury's Laws and Locabail International Finance Ltd v Agroexport, that a mandatory interlocutory injunction is granted only in clear cases, in special circumstances, or where the defendant stole a march, and where the court has a high degree of assurance of its correctness at trial. Here the respondent executed a decree flowing from the trial court's judgment, so the applicant's remedy lay in stay of execution, not a mandatory injunction. The application was accordingly refused on this limb.
Whether the applicant should be granted leave to file the appeal out of time under Section 79G of the Civil Procedure Act
Leave to file the appeal out of time was granted
Section 79G requires appeals to be filed within thirty days but permits admission out of time on good and sufficient cause. Applying the Thuita Mwangi v Kenya Airways factors (length of delay, reason for delay, chances of success, prejudice), the court accepted that the applicant had promptly filed a memorandum of appeal, albeit in the wrong court via the e-filing system, an error attributable to the party but one the court forgave as human error. The draft memorandum was held arguable and no significant prejudice was shown, so extension was warranted.
Whether the intended appeal is arguable
The draft memorandum of appeal was found to be arguable, though its ultimate success could only be determined at the hearing
The court undertook a plain reading of the draft memorandum of appeal dated 25th September, 2024 annexed to the application. It found the grounds arguable in that they invited the court to consider issues which the applicant contended the subordinate court did not properly address. The court expressly declined to predict the appeal's outcome, holding that success or failure could only be determined upon hearing the appeal itself.
Legal principles established
#- A mandatory injunction on interlocutory application will not normally be granted absent special circumstances, and requires a higher degree of assurance than a prohibitory injunction
- Extension of time to appeal is discretionary and is guided by the length of and reason for delay, arguability of the appeal and prejudice to the respondent
- Execution of a lawful decree pursuant to a judgment does not of itself constitute exceptional circumstances for a mandatory injunction
Court orders
#- 1.The applicant is granted leave to file an appeal out of time against the judgment delivered on 27th August, 2024 in Nairobi MCELC Number 362 of 2023
- 2.The respondent to ensure compliance with Order 9 Rule 9 of the Civil Procedure if need be
- 3.Each party to bear its own costs
- On appeal from
- Chief Magistrate's Court, Nairobi (MCELC No. 362 of 2023)
- MCELC Number 362 of 2023
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules and Sections 3A, 75, 78 and 79G of the Civil Procedure Act (first appeal from subordinate court to the Environment and Land Court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Olal v Jay Jay Holdings Limited (Environment and Land Miscellaneous Application E051 of 2025) [2025] KEELC 5407 (KLR)", Case Analysis (2025). Not stated in the extract (arising from Nairobi MCELC Number 362 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5407/eng@2025-07-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.