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ELCPartially AllowedNotice of Motion Application dated 24th October 2025 (within an Environment and Land Court petition)· [2025] KEELC 8309 (KLR)

Mwariama & 18 others (Suing on Their Behalf and on Behalf of About 3,000 Residents of Timau Area In Buuri Subcounty, Meru County) v National Land Commission & 5 others; Meru County & another (Interested Parties) (Environment and Land Petition E010 of 2020 & Petition 1 of 2022 (Consolidated)) [2025] KEELC 8309 (KLR)

Environment and Land Court
20 November 2025
5,177 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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A Meru court blocked the sale of 50 disputed acres pending appeal, but only because the applicants agreed to deposit Kshs.3 million as security within 30 days.

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 Meru (Oguttu Mboya, J) on a Notice of Motion dated 24th October 2025 by the 5th and 6th respondents/applicants, seeking a temporary injunction pending appeal restraining the alienation of approximately fifty acres of L.R No. 2890 adjoining the applicants' parcel L.R No. 7452. The application followed the court's dismissal on 16th October 2025 of the applicants' two earlier applications, against which they filed a notice of appeal dated 29th October 2025. The petitioners and the 4th respondent opposed via grounds of opposition, contending inter alia that the appeal was not arguable, that no draft memorandum of appeal was annexed, that a negative order cannot be stayed, that the land is public land in which the applicants hold no title, and that the applicants approached the court with unclean hands by failing to pay ordered costs. The Attorney General took no position. The court framed two issues: sufficient cause under Order 42 Rule 6(1), and the conditions for an injunction pending appeal. It held that the timeous notice of appeal constituted sufficient cause and was deemed an appeal under Order 42 Rule 6(4); that arguability of the appeal is exclusively for the Court of Appeal; that the uncontroverted affidavit evidence established irreparable loss; and, guided by Butt v Rent Restriction Tribunal, found a semblance of prima facie appeal. The application was allowed in terms of prayer 3, with a conditional injunction restraining alienation, subject to security of Kshs.3,000,000 to be deposited in an escrow account within 30 days, failing which the injunction lapses automatically. Costs were made to abide the outcome of the intended appeal.

Key legal issues

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01

Whether sufficient cause was established under Order 42 Rule 6(1)

Holding

Sufficient cause was established by the timeous filing of a notice of appeal within the 14-day period under Rule 77 of the Court of Appeal Rules 2022

Reasoning

Following the dismissal of their earlier applications on 16th October 2025, the applicants filed a notice of appeal dated 29th October 2025 within the statutory 14-day period. Under Order 42 Rule 6(4) of the Civil Procedure Rules, a notice of appeal lodged in accordance with the Court of Appeal Rules is deemed an appeal for purposes of a stay or injunction pending appeal. The applicants also lodged a letter bespeaking proceedings. The absence of a draft memorandum of appeal is immaterial, and arguability is not a condition under Order 42 Rule 6.

p. 6
02

Whether the conditions for a temporary injunction pending appeal were established

Holding

The court found a semblance of prima facie appeal and proven likelihood of irreparable loss, warranting an injunction pending appeal conditional on security

Reasoning

Applying Giella v Cassman Brown and the principles in Patricia Njeri & 3 Others v National Museum of Kenya and Butt v Rent Restriction Tribunal, the court held that the Court of Appeal might take a contrary view on the applicants' rights, so there was a semblance of prima facie appeal. The uncontroverted affidavit showed the suit land supplies water for the applicants' agricultural and ranching activities on L.R No. 7452, and its alienation would render the appeal nugatory, establishing irreparable loss. The injunction was conditioned on a Kshs.3,000,000 security deposit.

p. 7
03

Whether the intended appeal must be shown to be arguable before the trial court

Holding

No - arguability of the appeal is for the Court of Appeal alone; Order 42 Rule 6 does not list an arguable appeal as a condition

Reasoning

The court held that Order 42 Rule 6, governing stay and injunction pending appeal, does not reference an arguable appeal as a condition; that is a requirement only under Rule 5(2)(b) of the Court of Appeal Rules, which does not apply to the ELC. Inviting the trial court to assess arguability would amount to jurisdictional overreach.

p. 6

Legal principles established

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  • A notice of appeal duly filed within the statutory period is deemed an appeal for purposes of an application for stay of execution or temporary injunction pending appeal under Order 42 Rule 6(4)
  • A trial court seized of an application for injunction pending appeal cannot determine whether the intended appeal is arguable; that is a matter for the Court of Appeal under Rule 5(2)(b)
  • No law requires an applicant for injunction pending appeal to annex a draft memorandum of appeal where a notice of appeal has been filed
  • Uncontroverted factual averments in a supporting affidavit stand, as grounds of opposition cannot controvert factual depositions
  • A court may grant an injunction pending appeal even where it has dismissed the application for an interim injunction at first instance, to prevent the appeal being rendered nugatory

Court orders

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  1. 1.The Application dated 24th October 2025 allowed in terms of prayer 3 thereof
  2. 2.An order of temporary injunction issued restraining the 1st respondent, the 1st interested party, their servants, employees, assigns or agents from alienating or dealing with approximately fifty (50) acres of L.R No. 2890 adjoining L.R No. 7452 pending the appeal
  3. 3.Applicants to provide security (undertaking of damages) of Kshs.3,000,000
  4. 4.Security to be deposited in an escrow account in the names of the advocates for the petitioners and the 5th and 6th respondents/applicants in a reputable bank to be agreed
  5. 5.Security to be deposited within 30 days from the date of the ruling
  6. 6.In default of providing/depositing the security within the stipulated timeline, the temporary injunction orders to lapse and stand extinguished automatically
  7. 7.Costs of the Application to abide the outcome of the intended appeal
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act, Cap 281 and Order 42 Rule 6 of the Civil Procedure Rules, 2010

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, "Mwariama & 18 others (Suing on Their Behalf and on Behalf of About 3,000 Residents of Timau Area In Buuri Subcounty, Meru County) v National Land Commission & 5 others; Meru County & another (Interested Parties) (Environment and Land Petition E010 of 2020 & Petition 1 of 2022 (Consolidated)) [2025] KEELC 8309 (KLR)", Case Analysis (2025). Notice of Motion Application dated 24th October 2025 (within an Environment and Land Court petition). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8309/eng@2025-11-20

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