Josephine Kagiri v M'Mwirichia M'Guatu & Another

3. M’Mwirichia M’Guatu, the 1st respondent herein filed a Replying Afidavit dated October 17, 2023. He has deponed that the applicant is in total occupation of the suit property and contends that it is only fair and just that the status quo be maintained to allow the applicant exercise her undisputed right of appeal to the Court of Appeal. The 1st respondent further states that the applicant was sold the land by his father, one M’Guatu M’Itania and knows no other home. 4. The 2nd defendant/respondent opposed the application vide a replying afidavit dated 2September 2, 2023 sworn by Cecerina Karoki M’Guatu. It is her contention that no appeal has been lodged nor any Memorandum of Appeal annexed and no stay of execution has been granted. That if the application is granted and the applicant fails to lodge an appeal, the 2nd respondent will sufier injustice and loss. It is therefore the 2nd Respondents contention that the application is misconceived, has not merit and should be dismissed with costs. 5. The application was canvassed by way of written submissions. The applicant filed his submissions dated October 31, 2023 through the firm of Kiautha Arithi & Company Advocates, while the 2nd respondent filed hers dated November 10, 2023 through the firm of M/s Wilson P. Mburugu & Company Advocates. The 1st respondent did not file any submissions and relied on his replying afidavit. 6. I have considered the application, the afidavits on record, the submissions filed and the authorities cited. In my opinion, there are three issues for this court’s determination: i. Is there jurisdiction to hear the application? ii. If yes, what are the principles applicable in an application for injunction pending appeal? iii. Should the injunction sought be granted? 7. This court’s jurisdiction to grant a temporary injunction pending hearing and determination of an appeal lies with Order 42 Rule 6(6) of the Civil Procedure Rules. The application herein is stated to be brought under Order 40 among others. However, I do not think that order 40 is applicable in an application for temporary injunction pending hearing and determination of an appeal. 8. Order 42 Rule 6(6) grants the court with discretionary powers to grant orders of temporary injunction pending hearing and determination of an appeal on such terms as it deems fit as long as the procedure for filing an appeal from subordinate court has been complied with. It states as follows: “ Notwithstanding anything contained in sub rule (1) of this rule the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with” 9. This court has observed that the plaintifi has submitted as if she was dealing with an injunction pending the hearing and determination of the suit instead of an injunction pending appeal. It should be noted that there is no suit pending before this court as the court delivered judgment in the matter on July 12, 2023. The question then that arises is whether this court has jurisdiction to grant an injunction pending an appeal against its own decision. It is my understanding that Order 42 rule 6 of the Civil Procedure Rules deals with a matter that this court is sitting as an appellate court against the decision of the Lower Court and the court can grant an injunction against the decision of a subordinate court or tribunal. However, the court cannot grant an injunction pending an appeal against its own decisions. https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3648/eng@2024-01-18 2

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10. This court is persuaded by a line of judicial decisions including; Bartholomew Mwanyungu & 3 Others V Florence Dean Karimi [2019]eKLR, Tahir Sheikh Said Investments Limited V Administration, TSS Grain Millers & 2 Others [2019]eKLR and Chembe Katana Changi v Ministry of Lands & Settlement & 4 others [2014]eKLR where the court has rendered a judgment, the became functus oficio. In this case, this court rendered its judgment on July 12, 2023 and the plaintifi filed a notice of appeal against the said decision on July 18, 2023 and lodged in court on July 26, 2023. Having considered the relevant law and being persuaded by the above referred decisions, it is my finding that this court does not have the jurisdiction to entertain the Motion and grant the orders sought by the plaintifi. Having expressed his intention to appeal to the Court of Appeal by filing a notice of appeal, the plaintifi is at liberty within the provisions of Rules 5(2) (b) of the Court of Appeal Rules to move the Court of Appeal in an appropriate manner. 11. In the result, I find that the Notice of motion dated September 4, 2023 is improperly before this court. The same is dismissed with costs to the 2nd defendant. DATED SIGNED AND DELIVERED IN MERU THIS 18TH DAY OF JANUARY, 2024. Hon. C. Yano ELC – Judge In the presence of: Court assistant: Kiragu Nyaga for applicant No appearance for the advocate for the respondent, however respondents are present in court Hon. C. Yano ELC – Judge https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/3648/eng@2024-01-18 3

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