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ELCDismissedMurang'a CMCC ELC Case No. E043 of 2025 ( Appeal )· [2026] KEELC 2602 (KLR)

Gatuka v Njoroge & another (Land Case Appeal E045 of 2025) [2026] KEELC 2602 (KLR)

Environment and Land Court of Kenya at Murang'a
4 May 2026
777 words in judgment
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The bottom line

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The Environment and Land Court in Murang'a refused to lift an injunction stopping construction on disputed land, preserving the status quo until the appeal is decided.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Murang'a (M.N. Gicheru, Judge) determines a notice of motion dated 18-11-2025 brought by the Appellant in an appeal arising from Murang'a CMCC ELC Case No. E043 of 2025. The Appellant sought discharge of a temporary injunction issued on 4-11-2025 restraining him from encroaching on or constructing on L.R. No. Loc. 11/Maragi/1193/85, contending that he had not built on that plot, that it belonged to James Maina Mwangi, that the Respondent was not its owner and lacked locus standi, and that no prima facie case had been established in the lower court. The Respondent opposed, arguing the motion sought identical orders to those in the appeal, was an abuse of process calculated to pre-empt the appeal in limine, and that the status quo should be preserved pending the appeal and the main suit. Framing two issues - whether allowing the application would determine the appeal, and whether the Appellant had satisfied the stay criteria under Order 42 rule 6(2) of the Civil Procedure Rules - the court found that allowing the motion would leave nothing to decide in the appeal and would deny the Respondent a fair hearing while the dispute remained pending in the lower court. On the second issue, the Appellant failed to demonstrate substantial loss and made no provision to compensate the Respondent should the land be found to belong to him. The motion was dismissed with costs in the cause, dated, signed and delivered virtually at Murang'a on 4th May 2026.

Key legal issues

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01

Whether the motion to discharge the temporary injunction would determine the appeal

Holding

Allowing the motion would leave nothing to be decided in the appeal and would be unfair and unjust to the Respondent, whose dispute remains pending before the lower court.

Reasoning

The court reasoned that granting the motion would permit the Appellant to continue constructing on disputed land while the substantive ownership dispute remains pending before the lower court. That would effectively pre-empt and determine the appeal in limine, depriving the Respondent of a fair hearing on a dispute that should be resolved by application of the law.

p. 2
02

Whether the Appellant satisfied the criteria for stay of execution/discharge of injunction pending appeal under Order 42 rule 6(2)

Holding

The Appellant failed to satisfy the conditions: he could not demonstrate substantial loss and made no offer of security or compensation should the Respondent ultimately be found to own the land.

Reasoning

The court applied the three Order 42 rule 6(2) conditions. Although the application was made without unreasonable delay, the Appellant could not show substantial loss from being barred from constructing on disputed land, and gave no indication how he would compensate the Respondent if the land was eventually found to belong to the Respondent. The motion was therefore dismissed.

p. 2

Legal principles established

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  • An interim application that would leave nothing to be decided in the pending appeal ought not to be granted, as it pre-empts the appeal and denies the other party a fair hearing.
  • The conditions for stay of execution pending appeal under Order 42 rule 6(2) are substantial loss, application without unreasonable delay, and security for due performance of the decree.
  • A party who constructs on disputed land pending determination cannot claim substantial loss, having made no provision to compensate the other party if the land is found to belong to that party.

Court orders

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  1. 1.The motion dated 18-11-2025 is dismissed.
  2. 2.Costs in the cause.
On appeal from
Murang'a Chief Magistrate's Court (CMCC ELC)
E043 of 2025
Jurisdiction invoked
Order 42 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act (appellate jurisdiction over the subordinate court's interim orders)

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, "Gatuka v Njoroge & another (Land Case Appeal E045 of 2025) [2026] KEELC 2602 (KLR)", Case Analysis (2026). Murang'a CMCC ELC Case No. E043 of 2025 ( Appeal ). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2602/eng@2026-05-04

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