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)
The bottom line
#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
#Executive summary
#Key legal issues
#Res judicata
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
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.
Abuse of due process
The application constitutes classic abuse of the due process of the court, being a repeated attempt to evade res judicata
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.
Jurisdiction to grant injunction pending intended appeal to the Court of Appeal
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
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.
Legal principles established
#- 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
#- 1.The Application be and is hereby dismissed.
- 2.Costs of the Application be and are hereby awarded to the Respondents.
- 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.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.