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ELCDismissedNotice of motion dated 25/2/2025 (arising from an appeal against Tigania SPMC E & L Case No. E017 of 2025)

Itura v M’Naituri & 2 others (Environment and Land Appeal E012 of 2025) [2025] KEELC 6599 (KLR)

Environment and Land Court
30 September 2025
1,459 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to stop an auctioned land sale because the wife skipped cheaper legal remedies and failed to involve the purchaser.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Meru (B M Eboso, ELC Judge, dated 30 September 2025) determined a notice of motion dated 25/2/2025 in which the applicant, the wife of the 1st respondent, sought an interlocutory injunction restraining the respondents from entering, dealing with, selling or interfering by public auction with land parcels Tigania East/Kitharene/3527 and 4700 pending the hearing of her appeal against the refusal of interim injunctions in Tigania SPMC E & L Case No. E017 of 2025. The applicant asserted the suit land was matrimonial property and that her husband had sold it without her consent. The 2nd and 3rd respondents opposed, showing the land had been attached and sold in execution of a decree of Kshs 3,000,000 in Tigania SPMC Civil Case No. 43 of 2020, after conditional stay orders granted by the High Court (E. Muriithi J) lapsed for non-compliance. The court framed a single issue: whether the application met the criteria for an interlocutory injunction under Order 42 rule 6(6) of the Civil Procedure Rules. Applying the settled principles (Madhupaper, Venture Capital, Butt, Giella), the court held the applicant had failed: she bypassed objection proceedings under Order 22 rules 51-55 and the Matrimonial Property Act forum, filed two duplicate suits to frustrate execution, and sought to injunct a purchaser she had not joined. The application was dismissed for lack of merit. No costs order is recorded.

Questions the Court framed

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

  1. 1.Whether the application satisfies the criteria upon which a third tier appellate court exercises jurisdiction to grant an interlocutory injunction under Order 42 rule 6(6) of the Civil Procedure Rules pending the hearing and disposal of an appeal

Key legal issues

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01

Entitlement to an interlocutory injunction pending appeal under Order 42 rule 6(6)

Holding

The application was dismissed because the applicant did not satisfy the criteria; she had available statutory remedies she chose not to pursue, and sought to injunct a purchaser without joining him.

Reasoning

The applicant's plea rested on an alleged matrimonial interest in land attached in execution of a subsisting decree. Order 22 rules 51-55 provided objection proceedings to ventilate such interest, and the Matrimonial Property Act provided a forum to claim separation of matrimonial property; she pursued neither. Instead she filed two duplicate suits to frustrate execution, and the suit land had already been sold at auction. She also sought to injunct the purchaser without joining him, denying the court the benefit of hearing him. The appeal was thus not shown to be arguable or rendered nugatory by refusal.

p. 3

Legal principles established

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  • The jurisdiction to grant an interlocutory injunction under Order 42 rule 6(6) is discretionary and equitable, guided by whether the appeal is arguable, the balance of hardship, whether refusal would render the appeal nugatory, and the Giella v Cassman Brown principles.

Court orders

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  1. 1.The application dated 25/2/2025 is rejected and dismissed for lack of merit

The bench

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

majority

Wrote the judgment

On appeal from
Tigania Senior Principal Magistrate's Court (Environment and Land)
Tigania SPMC E & L Case No. E017 of 2025
Jurisdiction invoked
Order 42 rule 6(6) of the Civil Procedure Rules - appellate jurisdiction of the High Court to grant a temporary injunction pending appeal

Relief refused

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Interlocutory injunction restraining the respondents from entering, dealing with, selling or interfering by public auction with land parcels Tigania East/Kitharene/3527 and 4700 pending hearing of the appeal

The applicant failed to satisfy the criteria for exercise of the appellate discretion under Order 42 rule 6(6); she had alternative remedies (objection proceedings and the Matrimonial Court) and sought to injunct a purchaser who was not joined to the appeal

p. 3

Costs

No costs order is recorded in the ruling

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.

Notwithstanding anything contained in subrule (1) of this rule, the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just, provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.
p. 2Order 42 rule 6(6) jurisdiction
the jurisdiction of a first appellate court to grant an interlocutory injunction under Order 42 Rule 6(6) of the Civil Procedure Rules is a discretionary and equitable one.
p. 3Nature of appellate injunctive jurisdiction
Consequently, the application dated 25/2/2025 is rejected and dismissed for lack of merit.
p. 3Disposition
She elected not to initiate objection proceedings and instead opted to file two duplicate suits in the lower court.
p. 3Alternative remedy - objection proceedings

Issues in the judgment

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minor

The judgment variously refers to the applicant as applicant and appellant, and states the 1st respondent is husband to the 2nd respondent where the context suggests the applicant

minor

The applicant's written submissions are stated to relate to a notice of motion dated 31/1/2025 which was never filed in this court

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, "Itura v M’Naituri & 2 others (Environment and Land Appeal E012 of 2025) [2025] KEELC 6599 (KLR)", Case Analysis (2025). Notice of motion dated 25/2/2025 (arising from an appeal against Tigania SPMC E & L Case No. E017 of 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6599/eng@2025-09-30

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