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ELCDismissedNot stated in judgment· [2025] KEELC 7454 (KLR)

Mbaya v Kadima & another (Enviromental and Land Originating Summons 113 of 2019) [2025] KEELC 7454 (KLR)

Environment and Land Court
27 October 2025
ANA. NYUKURI
1,386 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Once a Kenyan court has decided your case, it cannot grant an injunction protecting you while you appeal — only a stay of execution.

What this practically means

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Executive summary

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The applicant, whose adverse possession claim was dismissed by this court in a judgment delivered on 19th September 2024, moved the court by notice of motion dated 1st October 2024 seeking inhibitory and temporary injunctive orders restraining the 1st respondent from dealing with the suit property pending his intended appeal to the Court of Appeal. He argued the appeal raised arguable grounds, would be rendered nugatory without the orders, that the 1st respondent threatened to evict his sister occupying the land, and that he had a house, sugarcane and electricity on the property. The 1st respondent opposed, contending the court was functus officio, denying the eviction threats, asserting the house was built by his father, and questioning the applicant's truthfulness given his shifting account of occupation. The court framed a single issue: whether the applicant deserved inhibition and injunction pending appeal. Holding that an inhibition is in the nature of an injunction, the court analysed its statutory powers under Section 68 of the Land Registration Act and Orders 40 and 42 of the Civil Procedure Rules, concluding that after a merit determination it has no power to grant an injunction pending an appeal to the Court of Appeal; its only remedy is stay of execution, a distinct order. It applied the Giella v Cassman Brown principles but held it could not revisit the prima facie case question. The application was dismissed with costs on 27th October 2025.

Key legal issues

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01

Whether the ELC has jurisdiction to grant inhibition and temporary injunction pending an appeal to the Court of Appeal

Holding

It does not; the only available remedy after judgment is stay of execution pending appeal

Reasoning

The court held that injunction powers under Order 40 Rule 1 apply in original jurisdiction before the suit is heard, and Order 42 Rule 6(7) permits appellate injunctions only before an appeal from a subordinate court is heard. Once the court has determined rights of parties on merit, it cannot revisit prima facie case questions; that is for the Court of Appeal. Stay pending appeal and temporary injunction are distinct orders, and no provision empowers this court to grant the latter post-judgment.

p. 3

Legal principles established

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  • After a court makes a merit determination, it has no power to grant an injunction or inhibition pending determination of an appeal to the Court of Appeal; its only intervention is stay of execution pending appeal
  • An inhibition is an order in the nature of an injunction prohibiting registration of dealings on a title

Court orders

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  1. 1.The application dated 1st October 2024 dismissed with costs
On appeal from
Environment and Land Court
Not stated
Jurisdiction invoked
Sections 68 Land Registration Act; Order 40 Rule 1 and Order 42 Rule 6(7) Civil Procedure Rules - the court found it lacked jurisdiction to grant injunction pending appeal to the Court of Appeal

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, "Mbaya v Kadima & another (Enviromental and Land Originating Summons 113 of 2019) [2025] KEELC 7454 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7454/eng@2025-10-27

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