Fund v Gachiege Water Resource Users Association (Suing through the Chairperson Joseph Muthinja) (Environment and Land Appeal E046 of 2025) [2026] KEELC 112 (KLR)
The bottom line
#Kenya's Environment and Land Court froze over Kshs 7 million in public water-project funds, stopping enforcement of a Meru magistrate's judgment until the appeal is decided.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the criteria for granting an order of stay of execution pending disposal of an appeal before a first appellate court has been met
- 2.Whether the criteria for granting an interlocutory injunction by a first appellate court has been met
Key legal issues
#Stay of execution pending appeal under Order 42 rule 6(2)
The criteria were met: substantial loss to the public from dissipation of over Kshs 7 million in public funds, no unreasonable delay (application filed within 30 days), and the funds in the bank constitute adequate security rendering the alternative damages award superfluous
The court examined the three limbs of Order 42 rule 6(2). The subject funds are public money held at KCB Meru Branch; their dissipation would occasion substantial loss to the public. The appeal and application were presented within 30 days of the 4/6/2025 judgment, so there was no unreasonable delay. On security, the funds remain safely in the bank, making the alternative award superfluous and due performance secured.
Interlocutory injunction by a first appellate court under Order 42 rule 6(6)
An injunction was merited on the balance of convenience purely for preservation of the public funds pending disposal of the appeal
Applying the principles in Madhupaper, Venture Capital and Butt, and guided by Giella v Cassman Brown, the court found the discretionary and equitable jurisdiction properly exercised where the appeal is not frivolous and the funds would otherwise dissipate. The public money entrusted under the environmental project financing agreement is held at KCB Meru Branch, and the balance of convenience favours preservation pending appeal.
Legal principles established
#- The jurisdiction of a first appellate court to grant an interlocutory injunction under Order 42 Rule 6(6) of the Civil Procedure Rules is discretionary and equitable, guided by the Giella v Cassman Brown principles and the requirement that the appeal not be frivolous, that greater hardship not be inflicted, and that refusal not render the appeal nugatory
- In disposing of a plea for an interlocutory injunction, the court does not make definitive or conclusive pronouncements on the key issues in the dispute
- Substantial loss may be founded on the risk of dissipation of substantial public funds
Court orders
#- 1.Order of stay of execution of the judgment and decree of the trial court pending disposal of the appeal (prayer 4 of the notice of motion dated 2/7/2025 granted)
- 2.Interlocutory injunction preserving the public funds held at Kenya Commercial Bank, Meru Branch, pending disposal of the appeal (prayer 6 granted)
- 3.Costs of the application to be in the appeal
- 4.The orders to lapse on disposal of the appeal or on expiry of 12 months from the date of the ruling
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate Court at Meru
- Meru CMC E & L Case No E046 of 2023
- Jurisdiction invoked
- First appellate jurisdiction of the Environment and Land Court over appeals from the Chief Magistrate's Court (Environment and Land) - asserted by the parties and accepted by the court, sua motu jurisdiction question raised on 7/7/2025
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In light of the above findings, the application dated 2/7/2025 succeeds and is allowed in terms of prayers 4 and 6. Costs of the application shall be in the appeal. The above orders shall lapse on disposal of the appeal or on expiry of 12 months from today.
on the balance of convenience, an injunction is merited purely for the purpose of preserving the public funds pending disposal of the appeal
This, in my view, is a substantial sum and its dissipation may, without doubt, occasion substantial loss to the public.
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
Issues in the judgment
#The decree as reproduced refers to general damages of Kshs.7.613,000 while the counterclaim and later passages refer to a refund of Kshs 7,653,000 / Kshs.7,781,200 - the amounts are inconsistent within the judgment
The respondent's chairman is referred to as Joseph Muthinja in the opening paragraph but as Joseph Muthiga in the replying affidavit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Fund v Gachiege Water Resource Users Association (Suing through the Chairperson Joseph Muthinja) (Environment and Land Appeal E046 of 2025) [2026] KEELC 112 (KLR)", Case Analysis (2026). Not stated in the ruling (appeal against judgment in Meru CMC E & L Case No E046 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/112/eng@2026-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.