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ELCDismissedNot stated in the excerpt (Notice of Motion dated 9th October 2024)

Maalim v Musa (Sued as the Legal Representative in the Estate of Fatuma Ahmed) & 2 others (Environment and Land Case 001 of 2022) [2025] KEELC 6137 (KLR)

Environment and Land Court
22 September 2025
1,967 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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The Plaintiff, claiming to be the registered proprietor of LR No. 36/1/50, moved the Court by Notice of Motion dated 9th October 2024 seeking an injunction restraining the Defendants from selling, disposing of or charging the suit land pending appeal, and leave to appeal against the Ruling of Mbugua J delivered on 3rd October 2024 which had dismissed his earlier application for a temporary injunction in the main suit. The 1st and 3rd Defendants opposed, contending the application was res judicata and an abuse of process, that the Plaintiff held no arguable appeal, and that an injunction would derail a Joint Venture Agreement on the land exposing the 1st Defendant to losses exceeding Kshs. 400 million. The 2nd Defendant did not respond. The Court framed two issues: whether the Plaintiff was entitled to leave to appeal, and whether an injunction pending appeal should issue. It held that under Order 43 Rule 1(1)(u) of the Civil Procedure Rules and Section 75 of the Civil Procedure Act, an appeal from orders on temporary injunctions lies as of right, so leave was unnecessary. On the injunction, the Court found the prayer res judicata: the same injunctive relief had already been refused by Mbugua J, and a court of concurrent jurisdiction could not sit on appeal over that decision. Relying on Charterhouse Bank and Dupoto Farms on the arguability and nugatory-ness test, and John Florence Maritime Services (Supreme Court) on res judicata, the Court dismissed the application with costs to the 1st and 3rd Defendants.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Plaintiff is entitled to leave to file an Appeal.
  2. 2.Whether this Court should grant an order of injunction pending appeal.

Key legal issues

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01

Whether leave to appeal is required for an appeal against a ruling on a temporary injunction

Holding

No leave is required; an automatic right of appeal exists under Order 43 Rule 1(1)(u) read with Section 75 of the Civil Procedure Act

Reasoning

Order 43 Rule 1(1)(u) provides that an appeal shall lie as of right from orders under Order 40 rules 1, 2, 3, 7 and 11 concerning temporary injunctions. Section 75(1)(h) of the Civil Procedure Act confirms that appeals lie from orders made under rules expressly allowing appeal. The ruling of 3rd October 2024 dealt with a temporary injunction, so the appeal lies as of right and the prayer for leave was unnecessary.

p. 4
02

Whether the court should grant an injunction pending appeal

Holding

The prayer is refused as res judicata; the same injunction issue was already determined by Mbugua J on 3rd October 2024 and this court cannot sit on appeal over that decision

Reasoning

The plaintiff had already sought injunctive relief over the same land in his application dated 1st February 2024, which was dismissed in the Ruling of 3rd October 2024. Granting an injunction pending appeal would effectively reverse that decision on appeal from a court of concurrent jurisdiction. The court relied on John Florence Maritime Services on res judicata and Charterhouse Bank on the test for injunctions pending appeal.

p. 5

Legal principles established

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  • The purpose of an injunction pending appeal is to preserve the status quo and prevent a successful appeal from being rendered nugatory
  • An appeal lies as of right from orders on temporary injunctions under Order 43 Rule 1(1)(u), so no leave is required

Court orders

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  1. 1.The Notice of Motion application dated 9th October 2024 is dismissed
  2. 2.Costs of the application to the 1st and 3rd Defendants

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Wrote the judgment

On appeal from
Environment and Land Court (Nairobi)
Application dated 1st February 2024, Ruling of 3rd October 2024 by Hon. Lady Justice L. Mbugua
Jurisdiction invoked
Order 43 Rule 1(1)(u) of the Civil Procedure Rules and Section 75 of the Civil Procedure Act (injunction pending appeal from a ruling on temporary injunctions)

Relief refused

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Injunction restraining the Defendants from selling, disposing of or charging LR No. 36/1/50 pending appeal

The prayer is res judicata, having been determined in the Ruling of 3rd October 2024; the court cannot sit on appeal over that decision

p. 5

Leave to file an appeal against the Ruling delivered on 3rd October 2024

Leave is unnecessary because an appeal lies as of right under Order 43 Rule 1(1)(u) in respect of temporary injunction orders

p. 4

Costs

Costs of the application to the 1st and 3rd Defendants

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the foregoing, I find the instant Notice of Motion application unmerited and will proceed to dismiss it with costs to the 1st and 3rd Defendants.
p. 5Disposition - dismissal with costs
I opine that this Court cannot sit on Appeal over Judge Mbugua’s decision and I hence find that the efiect of the instant prayer for injunction pending appeal would be to grant an order of injunction, which the Hon. Judge Mbugua failed to grant vide her Ruling of 3rd October 2024.
p. 5Res judicata - court of concurrent jurisdiction cannot revisit an earlier injunction ruling
The purpose of granting an injunction pending appeal is to preserve the status quo and to prevent the appeal, if successful, from being rendered nugatory.
p. 4Purpose of injunction pending appeal

Issues in the judgment

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minor

Name of the applicant's case and case file number not stated in the judgment opening; the parties are referred to only as Plaintiff and Defendants

minor

The court labelled the refusal of the injunction prayer as res judicata rather than treating the application for stay/injunction pending appeal as a distinct matter; the pleading defect is not explained further

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, "Maalim v Musa (Sued as the Legal Representative in the Estate of Fatuma Ahmed) & 2 others (Environment and Land Case 001 of 2022) [2025] KEELC 6137 (KLR)", Case Analysis (2025). Not stated in the excerpt (Notice of Motion dated 9th October 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6137/eng@2025-09-22

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