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ELCDismissedELCLA NO. E039 OF 2026· [2026] KEELC 4868 (KLR)

Gichuhi v Magotsi & another (Environment and Land Appeal E039 of 2026) [2026] KEELC 4868 (KLR)

Environment and Land Court
27 July 2026
1,080 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Kajiado Environment and Land Court dismissed an unopposed injunction application because the applicant failed to prove her appeal was worth preserving.

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 Kajiado (Judy Omange, J) on a notice of motion dated 19th May 2026 in which the Plaintiff/Appellant, Mary Wanjiku, sought a mandatory injunction to restrain the Respondents, their agents and servants from interfering with, constructing on, or approving development plans on Plot No. 27 Business and Plot No. 322 Residential, Ole Ole Kasasi Trading Centre, pending the hearing and determination of her appeal against the ruling of Chief Magistrate Charles Kutwa delivered on 7th May 2026 dismissing her suit. The application, supported by the Applicant's affidavit, was unopposed - the Respondents filed neither a response nor submissions. The court identified a sole issue: whether the application for injunction pending appeal was merited. It held it had jurisdiction under section 13(7) of the Environment and Land Court Act and Order 42 Rule 6(6) of the Civil Procedure Rules, and applied the principles from Patricia Njeri v National Museum of Kenya and Trust Bank v Investech Bank: the applicant must show the appeal is arguable and that refusal would render it nugatory. Although unopposed, the Applicant bore the burden of proof under Sections 107 and 108 of the Evidence Act. She failed to attach the ruling dismissing her suit, gave no explanation of her dissatisfaction with the lower court proceedings, and her assertion that a Survey Report of County Surveyor Okoth Charles Angire would have changed the outcome was unexplained. The application was dismissed with no orders as to costs, and the appeal was directed to be set down for hearing expeditiously.

Key legal issues

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01

Whether the Applicant was entitled to a mandatory injunction pending appeal

Holding

The application was not merited and was dismissed with no orders as to costs.

Reasoning

The court adopted the principles in Patricia Njeri & 3 Others v National Museum of Kenya and Trust Bank Limited & Another v Investech Bank Limited: an injunction pending appeal is discretionary and requires the applicant to show the appeal is arguable and that refusal would render it nugatory. The Applicant failed to attach the ruling dismissing the suit, gave no explanation for her dissatisfaction with the magistrate's proceedings, and merely asserted that a Survey Report would have changed the outcome without elaboration. The burden under Sections 107 and 108 of the Evidence Act was not discharged despite the application being unopposed.

p. 6

Legal principles established

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  • An order for injunction pending appeal is discretionary and must be exercised judicially; the applicant must show the appeal is arguable and that refusal would render it nugatory.
  • Even where an application is unchallenged and uncontroverted, the applicant must still discharge the burden of proof.

Court orders

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  1. 1.The application dated 19th May 2026 is dismissed with no orders as to costs as it was undefended
  2. 2.The appeal should be expeditiously set down for hearing
On appeal from
Chief Magistrate's Court, Ngong
not stated (suit previously Kajiado ELC 490 of 2017, transferred to Ngong Law Courts)
Jurisdiction invoked
Section 13(7) of the Environment and Land Court Act No. 19 of 2011 and Order 42 Rule 6(6) of the Civil Procedure Rules

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, "Gichuhi v Magotsi & another (Environment and Land Appeal E039 of 2026) [2026] KEELC 4868 (KLR)", Case Analysis (2026). ELCLA NO. E039 OF 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4868/eng@2026-07-27

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