Kinuthia v County Government of Kiambu (Environment and Land Case E067 of 2024) [2025] KEELC 6428 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the Court is functus officio after its ruling of 2nd April 2025 remitting the matter to the Liaison Committee
The Court is functus officio on the merits but retains residual jurisdiction to grant interim relief pending appeal; the preliminary objection fails.
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.
Whether the application is res judicata under Section 7 of the Civil Procedure Act
The application is not res judicata because it raises a distinct interlocutory issue - interim preservation pending appeal - not the substantive dispute already remitted.
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.
Whether the Applicant met the threshold for a temporary injunction and stay pending appeal
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.
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.
Who should bear the costs of the Application
Each party to bear their own costs.
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.
Legal principles established
#- 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
#- 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.Each party to bear their own costs.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.