Barngetuny & 3 others v Bett & 2 others (Environment and Land Appeal E001 of 2025) [2026] KEELC 3461 (KLR)
The bottom line
#Kenya's Environment and Land Court granted landowners an injunction pending appeal, found their opponent in contempt for defying court orders, and barred him from being heard until he complies.
What this practically means
#Executive summary
#Key legal issues
#Whether the application was incompetent for lack of a substantive suit
Not incompetent; an appeal is a continuation of the original substantive suit and injunctions may be sought in appeals.
Sections 2 and 19 of the Civil Procedure Act and Order 3 Rule 1 govern institution of first-instance suits, but this is an appeal, not a fresh claim. An appeal is a legal mechanism to review the trial court's decision for errors and is a continuation of the original suit, which is a substantive suit. Further, Order 42 Rule 1(6) empowers the appellate court to grant temporary injunctions, and Madhupaper International Ltd v Kerr confirms injunctive orders can be sought and granted during an appeal.
Whether the application is res judicata in light of the Ruling of 5th June 2025
Not res judicata; the prayers and orders differ from those in the earlier application determined on 5th June 2025.
The 5th June 2025 Ruling stayed the trial court's temporary injunction and directed status quo on sale or disposal. The instant application seeks a temporary injunction restraining entry, trespass and development, and a contempt finding for defiance of the 5th June 2025 orders, whereas the earlier contempt application concerned the status quo orders of 17th January 2025. The prayers are not the same, so none of the res judicata conditions is met.
Whether temporary injunction pending appeal and contempt orders were merited
Granted; the appeal is arguable and would be rendered nugatory, and the 1st Respondent defied the orders of 5th June 2025.
The appeal was duly instituted with a Record of Appeal filed on 3rd July 2025, satisfying Order 42 Rule 1(6). The 1st Respondent, who sought the Appellants' vacatur in the trial suit, was not in possession and entered the land and commenced permanent development despite the stay of his injunction, which he did not deny. Court orders are commands, not suggestions; defiance constitutes contempt warranting denial of audience until purged, per Hadkinson v Hadkinson.
Legal principles established
#- An appeal is not a substantive suit but a continuation of the original case, so injunctive relief may properly be sought in an appeal.
- An appellate court may grant a temporary injunction pending appeal where the appeal is arguable and would be rendered nugatory.
- Court orders are commands which must be obeyed, and a party in contempt may be denied audience until the contempt is purged.
Court orders
#- 1.Notice of Preliminary Objection dated 11th August 2025 dismissed entirely with costs to the Appellants/Applicants
- 2.Notice of Motion Application dated 2nd July 2025 allowed entirely in terms of prayers Nos 3, 4 and 5 with costs to the Appellants/Applicants
- 3.Temporary injunction pending appeal restraining the 1st Respondent, his agents, assigns or persons acting under his authority from entering, trespassing on or undertaking any further development on the suit property pending hearing and determination of the Appeal
- 4.A finding that the 1st Respondent is in contempt of court for disobeying the orders issued on 5th June 2025
- 5.The 1st Respondent denied audience before the court until he purges the contempt
- 6.Parties urged to prosecute the main Appeal; the court to entertain no further interlocutory applications in the Appeal
- On appeal from
- Environment and Land Court (trial court)
- Narok ELC No E069 of 2024
- Jurisdiction invoked
- Appellate jurisdiction under Order 42 Rule 1(6) and Order 42 Rule 6 of the Civil Procedure Rules, Sections 1A, 1B, 3A and 63(c) of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Barngetuny & 3 others v Bett & 2 others (Environment and Land Appeal E001 of 2025) [2026] KEELC 3461 (KLR)", Case Analysis (2026). ELC Appeal No E001 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3461/eng@2026-06-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.