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ELCPartially AllowedNotice of Motion dated 27th November 2025 in pending Appeal from CMELC No. E096/2023· [2026] KEELC 3059 (KLR)

Partois & another v Sampoti & another (Land Case Appeal E036 of 2024) [2026] KEELC 3059 (KLR)

Environment and Land Court
19 May 2026
1,172 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kilgoris protected trees on disputed Transmara land from being cut or sold until an appeal is decided.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kilgoris on a Notice of Motion dated 27th November 2025 by Tina Ole Sampoti seeking a temporary injunction pending appeal restraining the respondents from cutting, felling, destroying, removing, selling or interfering with trees on parcels No. Transmara/Oldanyati/767, 739 and 740, pending determination of an appeal against an order of consolidation issued by the trial court on 7th November 2024 in Kilgoris CMELC No. E096/2023, in respect of which a stay of proceedings had been issued. The respondent opposed the application through grounds of opposition and a replying affidavit, contending that similar applications had already been heard and determined in CMELC No. E096/2023 and CMELC No. E045/2024, rendering the application res judicata, and relying on section 7 of the Civil Procedure Act and IEBC v Maina Kiai. The court framed four issues, taking res judicata first as a jurisdictional question. It held that since the appeal had not been admitted and directions under Order 42 Rule 10 had not been issued, it could not refer to the supplementary record of appeal in which the prior applications and rulings appeared; absent that evidence, res judicata was not made out. On the merits, applying the principles in Patricia Njeri v National Museum of Kenya as stated in Timothy Kisina Kithokoi and Giella v Cassman Brown, the court found the trees form part of the subject matter of the suit and counter-claim, and that preservation was necessary so the appeal would not be rendered nugatory. The court confirmed its interim orders of 16th December 2025, allowed the application in terms of prayer 2, and awarded costs to the Applicant.

Key legal issues

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01

Whether the application for injunction pending appeal is res judicata given similar prior applications before the trial court

Holding

The application is not res judicata because the Respondent failed to place the prior applications and rulings before the court.

Reasoning

The Respondent alleged similar applications had been heard and determined in CMELC No. E096/2023 and CMELC No. E045/2024 but did not annex the applications or rulings. Instead the Respondent referred to two supplementary records of appeal. Since directions under Order 42 Rule 10 have not been issued and the appeal has not been admitted, the court could not refer to the supplementary record and was denied an opportunity to examine the prior rulings. Without evidence of res judicata, the issue was answered in the negative.

p. 3
02

Whether an injunction pending appeal should issue to preserve the trees on the suit parcels

Holding

The application is merited; the trees form the subject matter of the appeal against consolidation and of the counter-claim before the trial court, and preservation is needed so the appeal is not rendered nugatory.

Reasoning

Applying the Patricia Njeri principles as stated in Timothy Kisina Kithokoi, the court found the Applicant had made out a case for preserving the subject matter. The Applicant exhibited the plaint in CMELC E096/2023, whose consolidation is the subject of the appeal; the plaint sought damages for trespass and a permanent injunction against felling of trees, showing the trees are part of the subject matter. Cutting them would render the appeal and the counter-claim an academic exercise.

p. 3

Legal principles established

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  • Res judicata is a jurisdictional issue which must be proven with evidence of the prior proceedings and rulings placed before the court
  • An applicant for injunction pending appeal must show that refusing the injunction would render the appeal nugatory, and the court may order preservation of the subject matter of the appeal

Court orders

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  1. 1.The orders issued on 16th December 2025 are confirmed
  2. 2.The application dated 27th November 2025 is allowed in terms of prayer No. 2, being a temporary injunction restraining the Appellants/Respondents, their agents, servants, employees, family members or any persons acting under her instructions from cutting, felling, destroying, removing, selling or in any way interfering with the trees standing on parcels No. Transmara/Oldanyati/767, 739 and 740 pending the hearing and determination of the Appeal
  3. 3.The Applicants are 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 Vs. Cassman Brown
    (1973) E.A 358
  • Nguruman Limited Vs. Jan Bonde Nielsen and 2 Others
  • IEBC Vs. Maina Kiai and 5 Others
  • Patricia Njeri and 3 Others Vs. National Museum of Kenya
  • Timothy Kisina Kithokoi Vs. Elijah Kitele and Another
On appeal from
Kilgoris Chief Magistrate's Environment and Land Court (CMELC No. E096/2023)
CMELC No. 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 (Land Case Appeal E036 of 2024) [2026] KEELC 3059 (KLR)", Case Analysis (2026). Notice of Motion dated 27th November 2025 in pending Appeal from CMELC No. E096/2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3059/eng@2026-05-19

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