Wandaka v Mamalo Auctioneers & another (Environment and Land Appeal E012 of 2025) [2026] KEELC 2764 (KLR)
The bottom line
#A tenant's bid to save a seized vehicle failed because he appealed in the wrong Kenyan court and the vehicle had already been sold to someone else.
What this practically means
#Executive summary
#Key legal issues
#Power of an appellate court to grant injunctions pending appeal
An appellate court is not barred from granting an injunction; it may preserve property that is the substratum of the suit under Order 40 of the Civil Procedure Rules, guided by the Venture Capital/Butt principles for injunctions pending appeal.
The 2nd Respondent argued that an appellate court could only entertain stay applications. The court rejected this, holding that the power to prevent waste or alienation of suit property is not confined to courts of first instance, and applied the criteria for injunctions pending appeal: arguable appeal, hardship balance, and whether refusal would render the appeal nugatory.
Jurisdiction - whether the appeal was filed in the right forum
The Environment and Land Court lacked jurisdiction because the appeal was from the Trial Court's decision striking out the suit for want of jurisdiction, not from a Business Premises Rent Tribunal determination; the appellant filed the appeal in the wrong forum.
Relying on the Lillian S 'jurisdiction is everything' principle and Speaker of the National Assembly v Karume, the court held that where a clear statutory procedure exists - here recourse to the Business Premises Rent Tribunal under Cap 301 - it must be strictly followed. The ELC's appellate jurisdiction under section 15 of Cap 301 covers Tribunal decisions, not trial court decisions on jurisdiction.
Whether the application was moot having been overtaken by events
The application was overtaken by events: the vehicle had been auctioned and sold to David Kandie, a non-party, so granting the orders would be an academic exercise and would affect a third party not enjoined.
The 2nd Respondent showed the vehicle was sold on 17th April 2024 for Kshs 620,000, proceeds distributed, and a forced NTSA transfer allowed in Miscellaneous Application No. E040 of 2025. Citing Evans Kidero, the court held no court acts in vain or determines academic or moot controversies arising from supervening events.
Legal principles established
#- Every court, whether exercising original or appellate jurisdiction, may grant an injunction to preserve the substratum of the suit under Order 40 of the Civil Procedure Rules
- Where another adequate forum exists to resolve a dispute, a party must pursue that forum rather than invoke the jurisdiction of the wrong court
Court orders
#- 1.The application dated April 14, 2025 is dismissed with costs to the Respondents
- On appeal from
- Trial Court (Magistrates' Court)
- MCELC/E061/2024
- Jurisdiction invoked
- Section 15, Landlord and Tenant (Shops, Hotels and Catering Establishments) Act (Cap 301) - appellate jurisdiction over Tribunal-related determinations; court found it lacked jurisdiction over this appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wandaka v Mamalo Auctioneers & another (Environment and Land Appeal E012 of 2025) [2026] KEELC 2764 (KLR)", Case Analysis (2026). Not stated on the face of the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2764/eng@2026-04-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.