Njenga v Masto Holdings Limited & 4 others; The Co-Operative Bank Of Kenya (Interested Party)
The bottom line
#You cannot ask the Supreme Court for a temporary order before filing an actual appeal.
What this practically means
#The Supreme Court of Kenya has ruled that it cannot grant emergency orders like a stay of execution or an injunction unless a formal appeal has already been filed. In this case, a landowner tried to stop her eviction by asking the Supreme Court for help before she had even lodged an appeal. The Court said no, because its rules require an existing appeal before any interim request can be considered. This means you must follow the correct order: first file your appeal, then ask for temporary relief.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the court has jurisdiction to grant the stay of execution and injunction orders sought in the absence of a substantive appeal or petition before it.
Key legal issues
#Whether the Supreme Court has jurisdiction to grant stay of execution or injunction orders in an application filed before a petition of appeal is lodged.
The Court lacks jurisdiction because rule 31(2) of the Supreme Court Rules, 2020 prohibits originating an interlocutory application before a petition or reference is filed.
The Court noted that its earlier decisions in James Mbatia Thuo & Ephantus Mwangi v Kenya Railways Corporation and Boniface Mbugua v Mohammed Jawayd Iqbal established that interlocutory applications have no legal basis in the absence of an appeal. This principle is now codified in rule 31(2) of the Supreme Court Rules, 2020. Since the applicant's application for certification was still pending before the Court of Appeal and no petition had been filed, the Supreme Court had no jurisdiction to entertain the motion.
Legal principles established
#- An interlocutory application cannot be filed before a petition of appeal or reference is lodged with the Supreme Court.
- The Supreme Court lacks jurisdiction to grant stay of execution or injunctions without a substantive appeal pending.
- Rule 31(2) of the Supreme Court Rules, 2020 codifies the requirement that interim relief must be based on an existing appeal.
- A pending application for certification to appeal in the Court of Appeal does not give the Supreme Court jurisdiction.
- Each party bears its own costs when an application is dismissed for lack of jurisdiction.
Court orders
#- 1.The applicant’s Notice of Motion dated June 19, 2024 and filed on June 25, 2024 be and is hereby dismissed
- 2.Each Party shall bear their costs of the Application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal at Nairobi
- Civil Appeal No 632 of 2019
- Jurisdiction invoked
- Articles 47, 48, 50, 163(4)(b) of the Constitution; sections 3, 3A and 23A of the Supreme Court Act; rule 32 of the Supreme Court Rules, 2020
Relief refused
#Stay of execution of the Court of Appeal judgment
Court lacks jurisdiction because no substantive appeal or petition is lodged
Temporary injunction restraining the 1st respondent from interfering with the suit property
Same lack of jurisdiction
Costs
Each Party shall bear their costs of the Application
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
no interlocutory application can be brought before a petition of appeal or reference is lodged. Put another way, an interlocutory application must be based on an existing petition or Reference
without a substantive appeal to anchor the applicant’s motion, this Court is bereft of jurisdiction to grant the orders sought
The applicant’s Notice of Motion dated June 19, 2024 and filed on June 25, 2024 be and is hereby dismissed
Each Party shall bear their costs of the Application
Key timeline
#Practical implications
#File appeal first, then seek interim relief
When advising clients who want to challenge a Court of Appeal decision in the Supreme Court, ensure you first file a petition of appeal or reference. Any application for stay or injunction filed before that will be struck out for lack of jurisdiction. This ruling confirms that rule 31(2) is strictly applied, so plan your litigation timeline accordingly.
No shortcut to stop enforcement at Supreme Court
If you lose a case in the Court of Appeal and want to delay enforcement while preparing a Supreme Court appeal, you cannot ask the Supreme Court for a stay until your appeal is actually filed. Work with your lawyer to file the appeal immediately, then request interim orders. Otherwise, enforcement actions like eviction or asset transfer may proceed.
Follow the right steps to protect your property
If a court orders you to vacate land or pay money, and you plan to appeal to the Supreme Court, do not ask for a temporary stop order before filing your appeal. The Supreme Court will reject your request. First, have your lawyer file the appeal paperwork, then ask for a stay. Acting out of order can leave you without protection.
Frequently asked questions
#Can I ask the Supreme Court of Kenya to stop an eviction before I file an appeal?+
No. The Supreme Court ruled that it cannot grant a stay of execution or injunction unless a formal appeal (petition of appeal or reference) has already been filed. You must first file your appeal, then request interim relief.
What happens if I file an emergency application in the Supreme Court without an appeal in Kenya?+
The application will be dismissed for lack of jurisdiction. The Court has no power to hear it because its rules require an existing appeal. You will also have to bear your own legal costs.
Does a pending certification application in the Court of Appeal allow me to seek orders from the Supreme Court in Kenya?+
No. Even if you have applied for certification to appeal in the Court of Appeal, the Supreme Court still lacks jurisdiction until the petition of appeal is actually filed with it.
What is the correct procedure to get a stay of execution from the Supreme Court in Kenya?+
First, file a petition of appeal or reference with the Supreme Court. Then, you can file an interlocutory application for a stay or injunction. The Court will only consider your request after the appeal is on record.
Cite this brief
#Cite this brief
Caselaw, "Njenga v Masto Holdings Limited & 4 others; The Co-Operative Bank Of Kenya (Interested Party)", Case Analysis (2024). Application E020 of 2024. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2024/60/eng@2024-10-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.