Tormoi (Suing as Personal Representative of the Estate of David Kiptormoi) v Saina (Suing as Personal Representative of the Estate of Joel Kipsaina Korir) (Environment and Land Case 90 of 2015) [2025] KEELC 6052 (KLR)
The bottom line
#A Kenyan land court ruled that once it delivers judgment, only the Court of Appeal can grant injunctions protecting property pending an appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the Court is functus officio and can grant an injunction pending appeal
The Court is functus officio after judgment and cannot grant an injunction pending appeal; such relief is for the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules
Relying on Telkom Kenya v John Ochanda and Chembe Katana Changi, the Court reasoned that once a suit is determined on merit the trial court cannot revisit its own decision, since a party challenging a judgment cannot simultaneously demonstrate a prima facie case with chances of success. The only residual avenues are execution, review under Order 45, or stay under Order 42 Rule 6.
Whether the Court should review its ruling of 20th March 2025 on grounds of newly discovered evidence
Review refused: the alleged wastage reports date from October/November 2024, before the ruling, so the evidence was within the Applicant's knowledge and not new
Under Section 80 of the Civil Procedure Act and Order 45 Rule 1, review requires discovery of new and important matter which due diligence could not have revealed. The Forest Officer's report of 7th November 2024 and Agricultural Officer's report of 6th November 2024 were based on an OB recorded on 26th October 2024, months before the 20th March 2025 ruling. The Applicant therefore knew of the alleged wastage before the ruling was delivered.
Costs of the application
Costs follow the event; the unsuccessful Applicant bears the costs
Applying Section 27 of the Civil Procedure Act, the general rule is that a successful party should ordinarily be awarded costs unless the court, for good reason, directs otherwise. No reason was shown to depart from that rule.
Legal principles established
#- Once a trial court decides a suit on merit it becomes functus officio and cannot grant an injunction pending appeal; only the Court of Appeal may grant such relief
- For material to qualify as new and important evidence for review, it must not have been discoverable with due diligence and must not have been available to the applicant or the court
Court orders
#- 1.The Defendant/Applicant's Notice of Motion application dated 24th March, 2025 is dismissed with costs
- Jurisdiction invoked
- Order 45 Rules 1, 2 & 3, Order 40 Rule 1(a) & (b) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Tormoi (Suing as Personal Representative of the Estate of David Kiptormoi) v Saina (Suing as Personal Representative of the Estate of Joel Kipsaina Korir) (Environment and Land Case 90 of 2015) [2025] KEELC 6052 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6052/eng@2025-09-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.