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ELCPartially AllowedNotice of Motion dated 30th May 2025 (appeal filed herein)· [2025] KEELC 6062 (KLR)

Kipchilat v Lepeyo & 11 others (Environment and Land Appeal E005 of 2025) [2025] KEELC 6062 (KLR)

Environment and Land Court
18 September 2025
1,201 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A registered landowner in Kenya won a court order stopping others from using or selling his land until his appeal is heard.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nakuru (M. A. Odeny, J) on a Notice of Motion dated 30th May 2025 by the Applicant/Appellant, Richard Kipkorir Kipchilat, seeking an injunction pending appeal restraining the Respondents from dealing with L.R NO 10978/2 Title No. I.R No 68681. The Applicant deponed that he is the registered proprietor, that his suit in the lower court was dismissed ex-parte on 11th February 2025 with no orders as to costs, and that he filed an appeal on 18th February 2025 which would be rendered nugatory without interim protection; a similar application in the trial court had been dismissed on 20th May 2025. The Respondents opposed via Grounds of Opposition and a replying affidavit sworn by James Mbugua, contending the application failed the Order 42 Rule 6(6) threshold, that no irreparable loss was shown, and that the injunction would amount to final relief; the 3rd Respondent maintained the land is public land. Applying the settled Giella v Cassman Brown principles as restated in Siahi v Muhindi, the court found the annexed title demonstrated an arguable appeal, noted the 3rd Respondent's admission of trespass, and held the appeal would be rendered nugatory absent preservation orders. The court allowed the application, issued an injunction restraining the Respondents from dealing with the suit property pending the appeal, directed filing of the Record of Appeal within 45 days, and ordered that costs abide the outcome of the Appeal.

Key legal issues

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01

Threshold for injunction pending appeal

Holding

The Applicant satisfied the threshold: registered title showed an arguable appeal, damages may not adequately compensate, and the injunction preserves the substratum of the appeal

Reasoning

The court applied the Giella v Cassman Brown principles as restated in Siahi v Muhindi. The annexed title showing the Applicant as registered owner established an arguable appeal. The 3rd Respondent's replying affidavit admitted trespass as the land does not belong to them, and the trial court did not adjudicate on the issue, strengthening arguability. The purpose of such an injunction is preservation of the substratum of the case, and the appeal would be rendered nugatory if the property were alienated.

p. 3
02

Arguability of the appeal

Holding

The Applicant demonstrated an arguable appeal from his registered title and the Respondents' admission of trespass

Reasoning

The memorandum of appeal raised nine grounds. The supporting affidavit annexed a title showing the Applicant as registered owner of the suit land, which was prima facie evidence of an arguable appeal. Further, the 3rd Respondent admitted trespass in his replying affidavit, conceding the land does not belong to them, and the trial judgment had not adjudicated on that issue, so the appeal was arguable.

p. 3

Legal principles established

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  • An applicant for a temporary injunction pending appeal must demonstrate an arguable case, irreparable injury absent the injunction, and that the balance of convenience tilts in his favour

Court orders

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  1. 1.An order of injunction restraining the Respondents, their servants and/or agents, from trespassing on, creating further roads, cultivating, planting crops, making contours, sub-dividing, disposing of or otherwise dealing with L.R NO 10978/2 Title No. I.R No 68681 pending the hearing and determination of the Appeal
  2. 2.The Appellant shall file and serve the Record of Appeal within 45 days and fast track the hearing of the Appeal
  3. 3.Costs shall abide by the outcome of the Appeal
On appeal from
trial court (lower court/magistrates' court)
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (injunction pending appeal)

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, "Kipchilat v Lepeyo & 11 others (Environment and Land Appeal E005 of 2025) [2025] KEELC 6062 (KLR)", Case Analysis (2025). Notice of Motion dated 30th May 2025 (appeal filed herein). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6062/eng@2025-09-18

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