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ELCDismissedNakuru ELCA No. E078 of 2025 (Notice of Motion dated 11th November, 2025)· [2026] KEELC 1247 (KLR)

Kirui v Fedha & another (Environment and Land Appeal E078 of 2025) [2026] KEELC 1247 (KLR)

Environment and Land Court
5 March 2026
1,337 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Nakuru (M. A. Odeny, J) determined a Notice of Motion dated 11th November 2025 in which the Appellant, Rebecca Chepchirchir Kirui, sought a temporary injunction pending the hearing and determination of her appeal (Nakuru ELCA No. E078 of 2025) restraining the Respondents from evicting her, demolishing her homestead or interfering with her occupation of 3 acres comprised in L.R Block 5/574 (Ogilgei). Her suit in the lower court (Nakuru CMCC 1246 of 2013) had been struck out on 28th October 2025 after the Trial Magistrate upheld a preliminary objection that the Chief Magistrate's court lacked pecuniary jurisdiction, the suit property being valued in excess of Kshs. 20 million. The 1st Respondent deponed that she purchased the 9.69-acre parcel from Mary Musivoli Kijusa (deceased) for an educational institution, that the Appellant's 3 acres were to be excised from a different parcel (Njoro/Ngata Block 5/502), and that no privity of contract existed. The court applied Order 42 rule 6(6) CPR and the principles in Patricia Njeri v National Museum of Kenya, Madhupaper International Ltd v Kerr and KCB v Nicholas Ombija, holding that an injunction pending appeal is discretionary and will be refused where the appeal is frivolous or would inflict greater hardship. Because the suit was struck out for lack of jurisdiction rather than dismissed on the merits, the Appellant could refile in a competent court without triggering res judicata. The application was dismissed with costs to the Respondents.

Key legal issues

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01

Whether the threshold for a temporary injunction pending appeal under Order 42 rule 6(6) CPR was met

Holding

It was not met; the appeal was not shown to be arguable and no irreparable harm or balance of convenience was demonstrated

Reasoning

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.

p. 4
02

Whether the appeal was arguable

Holding

The appeal was effectively frivolous as the Appellant failed to demonstrate any arguable ground; jurisdiction cannot be conferred on a court that lacked it

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 11th November, 2025 seeking a temporary injunction pending appeal is dismissed
  2. 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

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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, "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.