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ELCDismissedNot stated in the judgment· [2025] KEELC 6405 (KLR)

Murtha & another v Murungi (Sued as the Administrator of the Estate of William Peter Muriungi (Deceased)) (Enviromental and Land Originating Summons 39 of 2018) [2025] KEELC 6405 (KLR)

High Court of Kenya
25 September 2025
3,410 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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The High Court dismissed a repeated bid to block a land judgment, confirming you cannot relabel an old application to get around an earlier ruling.

What this practically means

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Executive summary

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This ruling of the High Court at Meru (Oguttu Mboya, J) determined a Notice of Motion dated 19th July 2025 by the applicant, Florence Gacheri Murungi, who had been the defendant in the main suit and lost on 22nd September 2021 when the court, differently constituted, decreed that the suit properties be transferred to the respondents on the basis of adverse possession. The applicant filed a notice of appeal and an application for stay of execution, which was allowed on terms (deposit of original title deeds) by ruling of 2nd March 2022; she did not comply, and her review application was dismissed on 30th November 2022. She returned seeking conservatory injunctions restraining dealings on Nyaki/Kithoka/2573 and 2574 pending the intended appeal. The respondents opposed on grounds of res judicata under section 7 of the Civil Procedure Act and want of jurisdiction. The court framed three issues: res judicata, abuse of process, and jurisdiction. It held the application barred by constructive res judicata, since the injunction merely re-baptised the stay of execution already sought and disposed of, the net effect in both cases being to hold the judgment in abeyance. It further held the application an abuse of the due process of the court, citing multiplicity of applications. On jurisdiction, the court held that Order 42 Rule 6(6) empowers the High Court to grant injunctions only in appeals from subordinate courts, and no provision donates jurisdiction to grant injunctions pending appeals to the Court of Appeal; it also noted the 60-day window to file the appeal had lapsed. The application was dismissed with costs to the respondents, assessed at Kshs.25,000/=.

Key legal issues

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01

Res judicata

Holding

The application is barred by constructive res judicata; the injunction sought has the same import and tenor as the stay of execution previously sought and disposed of, and could have been raised in the previous applications

Reasoning

The applicant had previously obtained a conditional order of stay of execution (ruling of 2nd March 2022) and sought review which was dismissed (ruling of 30th November 2022). An order of stay and an injunction restraining dealings both operate to hold the judgment in abeyance. Only terminology changed; constructive res judicata bars issues which ought to have been canvassed earlier.

p. 4
02

Abuse of due process

Holding

The application constitutes classic abuse of the due process of the court, being a repeated attempt to evade res judicata

Reasoning

Relying on Satya Bhama Gandhi v DPP, the court held that multiplicity of actions on the same matter between the same parties is an abuse, lying in the multiplicity and manner of exercising the right, aimed at harassing the adversary and interfering with the administration of justice.

p. 5
03

Jurisdiction to grant injunction pending intended appeal to the Court of Appeal

Holding

The High Court has no jurisdiction to grant a temporary injunction pending an appeal from itself to the Court of Appeal; Order 42 Rule 6(6) applies only to appeals from subordinate courts

Reasoning

Courts derive jurisdiction from the Constitution and statute only. There is no equivalent provision under Order 42 for appeals to the Court of Appeal, so the court cannot innovate jurisdiction. The court further observed the 60-day window for filing the appeal from the 28th September 2021 notice of appeal had lapsed with no appeal on record.

p. 6

Legal principles established

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  • Where a litigant merely switches terminology, the net effect of the orders sought determines whether a subsequent application is barred by constructive res judicata
  • A court cannot arrogate to itself jurisdiction not clearly donated by the Constitution or statute; there is no provision equivalent to Order 42 Rule 6(6) empowering the High Court to grant an injunction pending an appeal to the Court of Appeal
  • Multiplicity of applications on the same matter by the same party constitutes abuse of the due process of the court

Court orders

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  1. 1.The Application be and is hereby dismissed.
  2. 2.Costs of the Application be and are hereby awarded to the Respondents.
  3. 3.To avert the filing of a further bill of costs, the costs in terms of clause (ii) are assessed and certified in the sum of Kshs.25,000/= only.

Authorities

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Legislation

  • Civil Procedure Actsection 7
  • Civil Procedure RulesOrder 42 Rule 6(1)
  • Civil Procedure RulesOrder 42 Rule 6(6)

Cases cited (9)

  • Kahoro & 2 others (Suing on their Behalf and on Behalf of Members of Twendane Company Limited) v Kanyamwi Trading Company Limited
    [2025] KECA 941 (KLR)
  • Chase Bank (K) Ltd vs Kariuki
    (2014) KEHC 9854
  • Kenya Commercial Bank Ltd vs Benjoh Amalgamated
    (2017) eKLR
  • Henderson v Henderson
    (1843) 67 ER 313
  • Mburu Kinyua v Gachini Tutu
    (1978) KLR 69
  • Satya Bhama Gandhi v Director of Public Prosecutions & 3 others
    [2018] KEHC 6100 (KLR)
  • Rutongot Farm Ltd vs Kenya Forest Service
    (2018) KESC
  • Macharia & another v Kenya Commercial Bank Limited & 2 others (Application 2 of 2011)
    [2012] KESC 8 (KLR) (23 October 2012) (Ruling)
  • In the Matter of the Interim Independent Electoral Commission
    Constitutional Application Number 2 of 2011
Jurisdiction invoked
High Court jurisdiction under the Constitution and statute; application brought under Order 42 Rule 6(1) of the Civil Procedure Rules (as urged by the applicant); court held injunction pending appeal to Court of Appeal lacks a donating provision

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, "Murtha & another v Murungi (Sued as the Administrator of the Estate of William Peter Muriungi (Deceased)) (Enviromental and Land Originating Summons 39 of 2018) [2025] KEELC 6405 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6405/eng@2025-09-25

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