Kigotho & another v Al-Amin & another (Civil Appeal E038 of 2024) [2025] KEELC 7060 (KLR)
The bottom line
#The Mombasa Environment and Land Court refused to protect Shanzu landowners pending their Court of Appeal appeal, ruling it lacked jurisdiction and the request duplicated a dismissed application.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to grant injunction pending appeal to the Court of Appeal under Order 42 Rule 6(6) of the Civil Procedure Rules
The court lacks jurisdiction; the rule applies only where the court is exercising appellate jurisdiction over a subordinate court's decision and the procedure for appealing from a subordinate court has been complied with. Once the intended appeal is to the Court of Appeal, that court may grant injunction under Rule 5(2)(b) of the Court of Appeal Rules.
The court relied on the express wording of Order 42 Rule 6(6), which empowers the High Court to grant a temporary injunction only 'in the exercise of its appellate jurisdiction' over subordinate court decisions. Counsel's own cited authorities (Ogumbo v Kyambo and Bartholomew Mwanyungu) confirmed that where the decision intended to be appealed is that of the ELC itself, the remedy lies in the Court of Appeal under Rule 5(2)(b).
Whether a previously dismissed prayer for status quo can be re-litigated in a fresh application
No. The status quo prayer in the present motion was couched word for word with a prayer in the Motion dated 15th October 2024 which was dismissed on 16th December 2024, and the court could not revisit it.
The court found that Prayer (c) of the current motion replicated Prayer (d) of the earlier Motion dated 15th October 2024, which the same court (Justice L. Naikuni) had considered and dismissed on 16th December 2024. Re-granting it would amount to the court sitting on its own appeal. The applicants' proper recourse was identified as the Court of Appeal.
Legal principles established
#- The jurisdiction to grant an injunction pending appeal under Order 42 Rule 6(6) applies only where the High Court/ELC is exercising appellate jurisdiction over a decision of a subordinate court; it does not extend to injunctions pending appeals to the Court of Appeal
- A court cannot revisit and re-grant a prayer it has already dismissed in a prior ruling, as this would amount to sitting on its own appeal
Court orders
#- 1.The Notice of Motion dated 10th January 2025 is dismissed with costs to the 2nd Respondent
- On appeal from
- Chief Magistrate's Court (ELC), Mombasa
- Mombasa CMELC No. E014 of 2022
- Jurisdiction invoked
- Order 40 and Order 42 Rule 6(6) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kigotho & another v Al-Amin & another (Civil Appeal E038 of 2024) [2025] KEELC 7060 (KLR)", Case Analysis (2025). Notice of Motion dated 10th January 2025 (Mombasa CMELC No. E014 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7060/eng@2025-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.