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ELCDismissedNot stated on the face of the judgment· [2026] KEELC 2764 (KLR)

Wandaka v Mamalo Auctioneers & another (Environment and Land Appeal E012 of 2025) [2026] KEELC 2764 (KLR)

Environment and Land Court
29 April 2026
2,540 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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The Appellant filed a Notice of Motion dated April 14, 2025 in the Environment and Land Court at Nyeri, seeking a prohibitory injunction restraining the Respondents from selling or disposing of motor vehicle KAQ 320Z, an injunction against further distress-for-rent proceedings pending appeal, and an order allowing him to pay the vehicle's value in exchange for its release. The vehicle had been seized by the 1st Respondent auctioneers on the 2nd Respondent's instructions in distress for rent proceedings, allegedly while the vehicle was not on the leased premises, contrary to the Distress for Rent Act. The 2nd Respondent opposed the application, contending that an appellate court cannot grant injunctions, that the appeal was filed in the wrong forum since the trial court had struck out the suit for want of jurisdiction in favour of the Business Premises Rent Tribunal, and that events had overtaken the application because the vehicle had already been auctioned and sold to a third party, David Kandie, with the proceeds distributed. The court held, first, that an appellate court does have power under Order 40 of the Civil Procedure Rules to preserve suit property. However, applying the Lillian S and Karume principles, it found that the appeal - which challenged the trial court's striking out of the suit for lack of jurisdiction, not a Tribunal decision - was filed in the wrong forum, the court lacking jurisdiction. It further found the application moot, the vehicle having been sold to a non-party, and declined to grant orders affecting third-party rights. The application was dismissed with costs to the Respondents.

Key legal issues

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01

Power of an appellate court to grant injunctions pending appeal

Holding

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.

Reasoning

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.

p. 3
02

Jurisdiction - whether the appeal was filed in the right forum

Holding

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.

Reasoning

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.

p. 5
03

Whether the application was moot having been overtaken by events

Holding

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.

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 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

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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, "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.