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ELCDismissed· [2025] KEELC 6052 (KLR)

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)

Environment and Land Court
18 September 2025
6,648 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~27 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Kericho (L. A. Omollo, J) determined the Defendant/Applicant's Notice of Motion dated 24th March 2025, brought under Order 45 Rules 1, 2 & 3 and Order 40 Rule 1(a) & (b) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act. The Applicant, representative of the estate of Joel Kipsaina Korir (deceased), sought an injunction restraining the Plaintiff/Respondent from transferring, disposing, leasing, ploughing or wasting the suit properties pending an intended appeal against the judgment of Oundo, J delivered on 9th May 2024, and review of the Court's ruling of 20th March 2025 with a stay of execution, arguing that post-ruling wastage of trees and crops rendered the appeal nugatory. The Respondent countered that the Court was functus officio, having dealt with similar prayers in its 20th March 2025 ruling, and that the alleged wastage was documented in reports from October/November 2024, long before the ruling, so no new evidence existed. The Court framed three issues. First, applying Telkom Kenya v John Ochanda and Chembe Katana Changi, it held there is no provision allowing a trial court to grant an injunction pending appeal; having determined the suit, the trial court is functus officio and only the Court of Appeal may grant such relief. Second, applying Section 80 and Order 45 Rule 1 and the Ex parte Apollo Mboya test, it held the alleged wastage was within the Applicant's knowledge before the ruling and thus could not constitute new and important matter warranting review. The application was dismissed with costs, costs following the event under Section 27 of the Civil Procedure Act.

Key legal issues

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01

Whether the Court is functus officio and can grant an injunction pending appeal

Holding

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

Reasoning

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.

p. 12
02

Whether the Court should review its ruling of 20th March 2025 on grounds of newly discovered evidence

Holding

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

Reasoning

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.

p. 14
03

Costs of the application

Holding

Costs follow the event; the unsuccessful Applicant bears the costs

Reasoning

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.

p. 14

Legal principles established

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  • 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

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  1. 1.The Defendant/Applicant's Notice of Motion application dated 24th March, 2025 is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 45 Rules 1, 2 & 3
  • Civil Procedure RulesOrder 40 Rule 1(a) & (b)
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 80
  • Civil Procedure ActSection 27
  • Constitution of Kenya 2010Article 159
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (19)

  • Giella v Cassman Brown & Co. Ltd
    [1973] EA 358
  • Nguruman Limited v Jan Bonde Nielson & 2 Others
    CA No. 77 of 2012 (2014) eKLR
  • American Cyanamid Co. v Ethicon Ltd
    [1975] AC 396
  • Josim Instantaneous Consortium v Equity Bank Kenya Limited
    [2025] KEHC 6871 (KLR)
  • Pius Kipchirchir Kogo v Frank Kimeli Tenai
    [2018] eKLR
  • Kenya Commercial Finance Co. Ltd v Afraha Education Society
    [2001] Vol. 1 EA 86
  • Waithaka v Industrial and Commercial Development Corporation
    [2001] eKLR
  • Joseph K. Wakiaga & 2 Others v Daniel Otieno Ojwelu & 2 Others
    [2022] KEELC 2129 (KLR)
  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • Alpha Fine Foods Limited v Horeca Kenya Limited & 4 Others
    [2021] eKLR
  • Raila Odinga & 2 Others v Independent Electoral Boundaries Commission & 3 Others
    [2013] eKLR; [2013] KESC 8 (KLR)
  • Mrao Ltd v First American Bank of Kenya Ltd
    [2003] eKLR
  • Kenya Lime Products Limited v Kalunde & 9 others
    (Environment & Land Case 17 of 2021) [2024] KEELC 990 (KLR)
  • Chem v Mwaniki
    (Environment and Land Appeal E006 of 2021) [2024] KEELC 3497 (KLR)
  • Francis Origo & another v Jacob Kumali Mungala
    (C.A Civil Appeal No. 149 of 2001) (unreported)
  • Telkom Kenya Limited v John Ochanda (Suing On His Own Behalf and on Behalf Of 996 Former Employees of Telkom Kenya Limited)
    [2014] KECA 600 (KLR)
  • Chembe Katana Changi v Ministry For Lands & Settlment & 4 others
    [2014] KEELC 181 (KLR)
  • Republic v Public Procurement Administrative Review Board & 2 others
    [2018] eKLR
  • Republic v Advocates Disciplinary Tribunal Ex parte Apollo Mboya
    [2019] KEHC 6379 (KLR)
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

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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, "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.