Gatuka v Njoroge & another (Land Case Appeal E045 of 2025) [2026] KEELC 2602 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the motion to discharge the temporary injunction would determine the appeal
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.
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.
Whether the Appellant satisfied the criteria for stay of execution/discharge of injunction pending appeal under Order 42 rule 6(2)
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.
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.
Legal principles established
#- 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
#- 1.The motion dated 18-11-2025 is dismissed.
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.