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ELCPartially AllowedNotice of Motion dated 25th April 2025 (arising from Ruling of 2nd April 2025)· [2025] KEELC 6428 (KLR)

Kinuthia v County Government of Kiambu (Environment and Land Case E067 of 2024) [2025] KEELC 6428 (KLR)

Environment and Land Court
24 September 2025
3,604 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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A Kiambu land court paused a county enforcement case pending appeal, but refused to block eviction because any harm could be compensated with money.

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 Kiambu (J. M Onyango, J) on the Applicant's Notice of Motion dated 25th April 2025, brought after the court's ruling of 2nd April 2025 upheld the Defendant's preliminary objection and remitted the dispute over an enforcement notice concerning LR. No. Kiambu/Municipality/Block 5 (Kiamumbi)/1489 to the Kiambu County Physical and Land Use Planning Liaison Committee. The Applicant, intending to appeal to the Court of Appeal, sought a temporary injunction against eviction, demolition and further enforcement notices, and a stay of the remission pending appeal. The Respondent raised a preliminary objection contending the court was functus officio, lacked jurisdiction, and that the application was res judicata and an abuse of process. The court held that although functus officio on the merits, it retained residual jurisdiction over ancillary matters such as stay pending appeal under Section 13(5) of the Environment and Land Court Act and Order 42 Rule 6 of the Civil Procedure Rules, and that the application was not res judicata since interim preservation pending appeal is a distinct interlocutory matter. On the merits, the intended appeal was found arguable, but the injunction failed because any harm was compensable in damages. The stay was granted only in terms of prayer (7), conditional on the Applicant depositing Kshs. 300,000/= as security for costs within 30 days, failing which the order lapses automatically. Each party was ordered to bear their own costs. The application was thus partially allowed.

Key legal issues

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01

Whether the Court is functus officio after its ruling of 2nd April 2025 remitting the matter to the Liaison Committee

Holding

The Court is functus officio on the merits but retains residual jurisdiction to grant interim relief pending appeal; the preliminary objection fails.

Reasoning

Relying on the Supreme Court's Muruatetu dictum and John Gilbert Ouma v Kenya Ferry Services, the court held that functus officio bars only merit-based re-engagement with a decided case. Since the Court cannot reopen its ruling but may deal with ancillary matters, it retains jurisdiction under Section 13(5) of the Environment and Land Court Act and Order 42 Rule 6 to grant interim relief preserving the substratum of the intended appeal.

p. 7
02

Whether the application is res judicata under Section 7 of the Civil Procedure Act

Holding

The application is not res judicata because it raises a distinct interlocutory issue - interim preservation pending appeal - not the substantive dispute already remitted.

Reasoning

Applying the test in IEBC v Maina Kiai, the court found the substantive dispute over the enforcement notice was remitted to the Liaison Committee and is not before it in this application. The Court nevertheless cautioned that interim relief must not become a disguised attempt to reopen the merits of the matter already referred to the Committee.

p. 7
03

Whether the Applicant met the threshold for a temporary injunction and stay pending appeal

Holding

The injunction failed because irreparable harm was not demonstrated - harm was compensable in damages - but the stay pending appeal was granted on terms under Order 42 Rule 6.

Reasoning

On Giella v Cassman Brown, the intended appeal was found arguable but not irreparable, since any harm could be compensated by damages. On stay, the application was made promptly, the Applicant was willing to provide security, and in the absence of a monetary decree an undertaking on costs sufficed. Stay was granted on condition of depositing Kshs. 300,000/= as security for costs within 30 days.

p. 8
04

Who should bear the costs of the Application

Holding

Each party to bear their own costs.

Reasoning

The court made no order as to costs, notwithstanding the Applicant's invocation of section 27 of the Civil Procedure Act that costs follow the event and the Respondent's request for costs on dismissal.

p. 8

Legal principles established

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  • A court becomes functus officio on the substantive merits but retains residual jurisdiction over procedural and ancillary matters flowing from its judgment, including stay of execution pending appeal.
  • An application for interim relief to preserve property pending an intended appeal is a distinct and interlocutory matter and is not barred by res judicata even where the substantive dispute has been remitted to a statutory committee.
  • Where there is no monetary decree, an undertaking to pay costs suffices as security for a stay pending appeal.

Court orders

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  1. 1.Stay of remission of the suit to the Kiambu County Physical and Land Use Planning Liaison Committee granted in terms of prayer (7) of the Notice of Motion, conditional on the Applicant depositing Kshs. 300,000/= as security for costs within 30 days, failing which the order shall automatically lapse.
  2. 2.Each party to bear their own costs.

Authorities

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Legislation

  • Physical and Land Use Planning Act, 2019Sections 72(1)(b), 72(3), 72(4), 72(5), 78(d)
  • Civil Procedure Act, Cap 21Sections 7, 27
  • Environment and Land Court ActSections 13, 13(5)
  • Constitution of Kenya, 2010Article 165(3)(e)
  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (16)

  • Owners of the Motor Vessel “Lillian S” vs Caltex Oil (Kenya) Ltd
    [1989] KLR 1
  • Nancy Mwangi t/a Worthlin Marketers vs Airtel Networks (K) Ltd & Others
    [2014]
  • Giella vs Cassman Brown & Co. Ltd
    [1973] EA 358 (also cited as [1975] E.A. 358)
  • Republic vs Karisa Chengo & 2 Others
    [2017] eKLR
  • John Gilbert Ouma vs Kenya Ferry Services Ltd
    [2021]eKLR (also cited as [2014] eKLR)
  • Mrao Ltd vs First American Bank
  • Karanja v County Government of Kilifi
  • Mwangi S. Kimenyi vs Attorney General
  • Focin Motorcycle Co. Ltd vs Ann Wambui Wangui
    [2018] eKLR
  • RWW vs EKW
  • Samuel Kamau Macharia & Another vs Kenya Commercial Bank Ltd & 2 Others
    (2012)
  • Mburu Kinyua vs Gachini Tuti
    [1978] KLR 69
  • Uhuru Highway Development Ltd vs Central Bank of Kenya & 2 Others
    [1996] eKLR
  • Muchanga Investments Ltd vs Safaris Unlimited (Africa) Ltd & 2 Others
    [2009] eKLR
  • Francis Karioki Muruatetu & another vs Republic
    [2016] eKLR
  • Independent Electoral and Boundaries Commission vs Maina Kiai & 5 Others
    [2017] eKLR
Jurisdiction invoked
Section 13(5) of the Environment and Land Court Act and Order 42 Rule 6 of the Civil Procedure Rules; Article 165(3)(e) of the Constitution cited by the Applicant

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, "Kinuthia v County Government of Kiambu (Environment and Land Case E067 of 2024) [2025] KEELC 6428 (KLR)", Case Analysis (2025). Notice of Motion dated 25th April 2025 (arising from Ruling of 2nd April 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6428/eng@2025-09-24

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