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ELCDismissedMSA. ELCA. E075 OF 2025· [2026] KEELC 5000 (KLR)

Ndara & 2 others v Ndara & 2 others (Environment and Land Appeal E075 of 2025) [2026] KEELC 5000 (KLR)

Environment and Land Court of Kenya
30 July 2026
JOJ. O. Olola
1,243 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 in Mombasa refused to stop the sale of a family property, finding the current owner received it through proper legal process.

What this practically means

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Executive summary

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By a Notice of Motion dated 25th November 2025, the three Appellants sought an order of injunction restraining the Respondents, their servants and agents from selling and/or interfering with the house and land on Mombasa/Block XIII/196 measuring approximately 0.011 Ha in Makupa, Mombasa County, pending the hearing of their Appeal. The application was supported by an affidavit of the 1st Appellant, who contended that the property originally belonged to their grandfather Jacton Ndara Ajuoga; that the transfer of the property to the Respondents' father, William Anyumba Ndara, was fraudulent and had the effect of disinheriting the Appellants' father; that the Respondents had purported to sell the house and were threatening eviction; and that the appeal would be rendered nugatory unless the orders issued. The Respondents, through the 1st Respondent Janet Anyumba Ndara, opposed the application, asserting she was the absolute proprietor; that the property belonged to her late father who died on 5th June 2021; and that the Appellants had no interest in it. The Court applied the principles in Venture Capital & Credit Limited vs Consolidated Bank of Kenya Ltd on injunctions pending appeal. It found that the property was transferred to the 1st Respondent's father on 26th October 2009 with no recovery action taken before his death on 5th June 2021; that the 1st Respondent obtained a Grant in Mombasa CMCC Succession Cause No. E306 of 2021 and was registered by transmission on 21st February 2023; and that she obtained the property through proper legal process and was not the perpetrator of any alleged fraud. The Court dismissed the Motion and ordered that costs of the Motion be in the Appeal.

Key legal issues

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01

Whether an injunction pending appeal should issue to restrain sale of the suit property

Holding

The application for injunction pending appeal was dismissed as the Appellants did not demonstrate a basis for the restraining orders.

Reasoning

The Court applied the Venture Capital & Credit Limited principles for injunctions pending appeal. On the material before it, the suit property was transferred to the 1st Respondent's father on 26th October 2009, no action was taken to recover it until his death on 5th June 2021, and the 1st Respondent thereafter obtained a Grant in Mombasa CMCC Succession Cause No. E306 of 2021 and was registered by transmission on 21st February 2023. The 1st Respondent thus obtained the property through proper legal process and, even if fraud attended the earlier transfer, she was not the perpetrator.

p. 7

Legal principles established

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  • An order for injunction pending appeal is a discretionary matter which must be exercised judiciously and not in a whimsical or arbitrary fashion, guided by principles including that the appeal must not be frivolous, that the injunction must not inflict greater hardship than it avoids, that refusal must not render the appeal nugatory, and the principles in Giella vs Cassman Brown

Court orders

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  1. 1.The Notice of Motion dated 25th November 2025 is dismissed
  2. 2.The costs of the Motion shall be in the Appeal
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court over appeals from subordinate courts, on an application for 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, "Ndara & 2 others v Ndara & 2 others (Environment and Land Appeal E075 of 2025) [2026] KEELC 5000 (KLR)", Case Analysis (2026). MSA. ELCA. E075 OF 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5000/eng@2026-07-30

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