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ELCAllowedNot stated in judgment (appeal against consolidation order in Kilgoris CMELC E096/2023)· [2026] KEELC 3007 (KLR)

Partois & another v Sampoti & another (Environment and Land Case E036 of 2024) [2026] KEELC 3007 (KLR)

Environment and Land Court
19 May 2026
1,174 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court at Kilgoris blocked the cutting of trees on disputed land until an ongoing 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 Kilgoris (M. N. Mwanyale J) determined a notice of motion dated 27th November 2025 in which the applicant, Tina Ole Sampoti, sought a temporary injunction pending appeal restraining the respondents from cutting, felling, destroying, removing, selling or interfering with trees on parcels Transmara/Oldanyati/767, 739 and 740. The appeal challenges a consolidation order made by the trial court in Kilgoris CMELC E096/2023, and a stay of proceedings is in place. The respondent opposed the application through grounds of opposition and a replying affidavit, contending that similar injunction applications had already been heard and determined in CMELC E096/2023 and CMELC E045/2024, rendering the application res judicata, and that no appeal lay against those rulings. The court framed four issues, taking res judicata first as a jurisdictional question. It declined to find res judicata because the respondent did not annex the prior applications or rulings, and the court could not refer to the supplementary record of appeal since directions under Order 42 rule 10 had not been issued and the appeal had not been admitted for hearing. On the merits, applying the Patricia Njeri principles as quoted in Timothy Kisina Kithokoi and guided by Giella v Cassman Brown, the court found the trees formed part of the subject matter of E096/2023, in which the applicant as counter-claimant sought damages for trespass and a permanent injunction against felling trees. Preservation was necessary to avoid rendering the appeal nugatory. The court confirmed the orders of 16th December 2025, allowed the application in terms of prayer 2, and awarded the applicants costs.

Key legal issues

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01

Res judicata - whether prior injunction applications in the trial court barred this application

Holding

The plea of res judicata failed because the respondent did not annex the prior applications and rulings, and the court could not refer to the supplementary record of appeal as the appeal was not yet admitted

Reasoning

Res judicata is a jurisdictional issue and was framed first. The respondent alleged similar applications had been determined in CMELC E096/2023 and E045/2024, referring to rulings in a supplementary record of appeal. However, directions under Order 42 rule 10 had not been issued and the appeal had not been admitted, so the court could not access the supplementary record. Without the underlying evidence of the prior determinations, no finding of res judicata was possible.

p. 3
02

Whether an injunction pending appeal ought to issue to preserve the trees

Holding

The application was merited; the trees formed part of the subject matter of the consolidated suit and the counter-claim, so preservation was necessary to avoid rendering the appeal nugatory

Reasoning

Applying the injunction-pending-appeal principles (Patricia Njeri as quoted in Timothy Kisina Kithokoi) and Giella v Cassman Brown, the court found the applicant had exhibited the plaint in E096/2023 showing the trees were the subject of the counter-claim for trespass damages and a permanent injunction against felling. Harvesting of the trees pending appeal would destroy the subject matter and render the appeal and counter-claim academic, justifying preservation.

p. 3

Legal principles established

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  • Where the party asserting res judicata does not place the prior applications and rulings before the court, no finding of res judicata can be made
  • An appeal not admitted for hearing means the supplementary record of appeal cannot be referred to

Court orders

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  1. 1.The court confirmed the orders issued on 16.12.2025
  2. 2.The application dated 27.11.2025 was allowed in terms of prayer No. 2 (temporary injunction restraining cutting, felling, destroying, removing, selling or interfering with the trees on parcels Transmara/Oldanyati/767/739 and 740 pending hearing and determination of the appeal)
  3. 3.The applicants were awarded costs of the application

Authorities

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Legislation

  • Civil Procedure ActSection 7 (res judicata)
  • Civil Procedure RulesOrder 42 rule 6
  • Civil Procedure RulesOrder 42 rule 10

Cases cited (5)

  • Giella v Cassman Brown
    (1973) EA 358
  • Nguruman Limited v Jan Bonde Nielsen and 2 Others
  • IEBC v Maina Kiai and 5 Others
  • Patricia Njeri and 3 Others v National Museum of Kenya
  • Timothy Kisina Kithokoi v Elijah Kitele and Another
On appeal from
Kilgoris Chief Magistrate's Court (CMELC)
E096/2023
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules (injunction pending 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, "Partois & another v Sampoti & another (Environment and Land Case E036 of 2024) [2026] KEELC 3007 (KLR)", Case Analysis (2026). Not stated in judgment (appeal against consolidation order in Kilgoris CMELC E096/2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3007/eng@2026-05-19

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