Kirui v Fedha & another (Environment and Land Appeal E078 of 2025) [2026] KEELC 1247 (KLR)
The bottom line
#A Nakuru court refused to protect a landowner from eviction on appeal because her original case was filed in the wrong court—and she can simply refile it correctly.
What this practically means
#Executive summary
#Key legal issues
#Whether the threshold for a temporary injunction pending appeal under Order 42 rule 6(6) CPR was met
It was not met; the appeal was not shown to be arguable and no irreparable harm or balance of convenience was demonstrated
The court applied the established principles for injunctions pending appeal: the appeal must not be frivolous, the injunction must not inflict greater hardship than it avoids, and refusal must not render the appeal nugatory. Since the Appellant's suit was struck out for lack of pecuniary jurisdiction rather than dismissed on the merits, she retained the remedy of filing a fresh suit in a court with competent jurisdiction, so no irreparable loss would flow from refusing the injunction.
Whether the appeal was arguable
The appeal was effectively frivolous as the Appellant failed to demonstrate any arguable ground; jurisdiction cannot be conferred on a court that lacked it
The Respondents argued the trial court lacked pecuniary jurisdiction at the time of filing, and the appeal did not raise a genuine issue. The court noted the suit was struck out on jurisdictional grounds, not dismissed after a full hearing, meaning the Appellant could refile in a competent court. An arguable appeal is one that ought to be argued fully, but the Appellant did not demonstrate such grounds.
Legal principles established
#- An order of injunction pending appeal is discretionary and will be exercised against an applicant whose appeal is frivolous; the applicant must show an arguable appeal, that refusal would render the appeal nugatory, and that the injunction would not inflict greater hardship
- A suit struck out for lack of pecuniary jurisdiction is not a bar to filing the same claim in a court of competent jurisdiction; res judicata does not apply
Court orders
#- 1.The Notice of Motion dated 11th November, 2025 seeking a temporary injunction pending appeal is dismissed
- 2.Costs of the application to the Respondents
- On appeal from
- Chief Magistrate's Court, Nakuru
- Nakuru CMCC 1246 of 2013
- Jurisdiction invoked
- Order 42 rule 6(6) Civil Procedure Rules, 2010 (appellate jurisdiction of the High Court over subordinate courts; ELC exercising such jurisdiction)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kirui v Fedha & another (Environment and Land Appeal E078 of 2025) [2026] KEELC 1247 (KLR)", Case Analysis (2026). Nakuru ELCA No. E078 of 2025 (Notice of Motion dated 11th November, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1247/eng@2026-03-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.