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ELCDismissedApplication dated 25th October 2024 (Notice of Motion)· [2025] KEELC 7135 (KLR)

Mathangani v Menja (Environment and Land Case 101 of 2017) [2025] KEELC 7135 (KLR)

Environment and Land Court
14 October 2025
LKL. G. Kimani
2,175 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court dismissed a landowner's bid to stop execution of a judgment, ruling you cannot get an injunction pending appeal without proving the appeal actually exists.

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 Nyeri (L. G. Kimani, J) on the Defendant/Applicant's Notice of Motion dated 25th October 2024. The underlying suit, filed by Plaint dated 5th June 2017, had been decided on 28th July 2021 in favour of the Plaintiff, who obtained a declaration that the Defendant held one-half of title No. Kirimukuyu/Mbogoini/563 in trust for him, an order terminating the trust and directing transfer of one-half of the suit property, with costs to the Plaintiff. The Applicant sought stay of execution of the decree of 2nd February 2023, restraint of the County Land Surveyor from boundary operations on parcels Kirimukuyu/Mbogoini/1232 and 1233, and an injunction restraining the Plaintiff from interfering with those parcels pending Nyeri Court of Appeal Case No. E142 of 2022. The Respondent did not respond. The court framed two issues: stay of execution and injunction. It held Prayers 2 and 3 (stay and injunction pending the application itself) spent, as they did not seek orders pending appeal. On the injunction pending appeal, applying the principles in Patricia Njeri v National Museum of Kenya and the Giella v Cassman Brown test, the court found no evidence that the alleged appeal existed: the Notice of Appeal dated 11th November 2022 was filed without an order extending time, over a year after judgment. The court further found the decree had largely been executed with the Applicant's knowledge and that an injunction would inflict greater hardship on the decree holder, citing Kenya Shell v Kibiru on the right of a successful litigant to the fruits of judgment. The application was dismissed with no order as to costs.

Key legal issues

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01

Stay of execution and injunction pending determination of the application itself

Holding

Spent; the ruling on the application would determine them, so they fall away

Reasoning

Prayers 2 and 3 sought orders only pending hearing and determination of the instant application, not pending appeal. Since the court was itself determining the application, those prayers were spent and could not be granted.

p. 3
02

Injunction pending appeal

Holding

Refused

Reasoning

The applicant produced no evidence of Nyeri Court of Appeal Case No. E142 of 2022, no extension-of-time application or order, and the Notice of Appeal was filed late without extension. The decree had largely been executed with her knowledge, and an injunction would cause greater hardship to the decree holder.

p. 4

Legal principles established

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  • A successful litigant should not be deprived of the fruits of a judgment without just cause
  • An application for injunction pending appeal requires proof that the appeal is not frivolous and that refusal would render it nugatory

Court orders

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  1. 1.Prayers 2 and 3 of the application (stay of execution and injunction pending determination of the application) declared spent and not falling for consideration
  2. 2.The application dated 25th October 2024 dismissed
Jurisdiction invoked
Inherent jurisdiction of the court over its own suit and execution of its decree; Order 40 Civil Procedure Rules (temporary injunctions)

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, "Mathangani v Menja (Environment and Land Case 101 of 2017) [2025] KEELC 7135 (KLR)", Case Analysis (2025). Application dated 25th October 2024 (Notice of Motion). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7135/eng@2025-10-14

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