Maalim v Musa (Sued as the Legal Representative in the Estate of Fatuma Ahmed) & 2 others (Environment and Land Case 001 of 2022) [2025] KEELC 6137 (KLR)

g. That Honourable Court duly grant the Applicant leave to file an appeal against the Ruling delivered by Hon. Lady Justice L. Mbugua on 3rd October 2024 and any consequential order and decree arising thereof. h. That we have filed a Notice of Appeal dated 4th October 2024 and requested for a copy of the Ruling and court proceedings which we need to be able to file a Record of Appeal. i. That the costs of this application be provided for. 2. The application is premised on grounds on its face and on the Plaintifi’s supporting afidavit. He claims that he is the registered proprietor of Land Reference Number 36/1/50 hereinafter referred to as the ‘suit land’, and confirms that on 3rd October 2024, this Court delivered a Ruling against his application dated 1st February 2024 in which he sought a temporary injunction restraining the Defendants from dealing with the suit land pending the hearing and determination of the main suit. He avers that being dissatisfied with the said Ruling, he has instructed his advocates on record to file an Appeal. He confirms that before filing the application dated 1st February 2024, he had filed several applications seeking the same orders, adding that on 16th July 2024, his advocate requested for the said applications to be marked as withdrawn. 3. He avers that the subject matter of the suit being land, it was trite that the Court would have issued a temporary injunction against any dealing on the said suit land until the final determination of its legitimate owner. He points out that the Defendants are in the process of selling units of already constructed apartment blocks on the suit land, which leaves him in danger of losing his interest in the said property thus he stands to sufier irreparable damage, while the Defendants will not be prejudiced. He annexed a copy of a Notice of Appeal dated 4th October 2024 and avers that he has requested for certified copies of the Ruling and the Court proceedings so as to file a Record of Appeal. 4. The application is opposed by the 1st and 3rd Defendants vide the 1st Defendant’s replying afidavit. She avers that the Plaintifi’s application is res-judicata and an abuse of the Court process as the Court has already made a determination on a similar application vide its Ruling dated 3rd October 2024. Further, that the Plaintifi admits that he has previously filed numerous applications thus he is engaged in delaying tactics. She insists that the Plaintifi has not met the threshold for grant of injunctive orders sought as he does not have any arguable ground of Appeal with prospects of success. 5. She claims to be the lawfully registered proprietor of the suit land, together with one Fatuma Ahmed(deceased) -1st Defendant, having acquired the same in 1987. Further, that this position is confirmed vide a Search conducted on 20th June 2023 at the Ministry of Lands. She contends that the Plaintifi is claiming ownership of the suit land based on a fraudulently acquired title with no documentary backing. Further, that the said title is subject of investigations by the Directorate of Criminal Investigations. She reiterates that injunctive orders will be prejudicial to her since she will not be able to utilize the suit land despite having a proper title over it. 6. She explains that on 22nd September 2021, she entered into a Joint Venture Agreement with one Ali Daud Mohamed and in compliance with Clause 25 thereof, she granted the Developer vacant possession and if the orders sought are granted, the said Joint Venture Agreement would be terminated and cause her to sufier a loss of more than Kshs.400 million, which the Plaintifi will not be able to compensate if awarded as damages. 7. The 2nd Defendant did not file a response to the application. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6137/eng@2025-09-22 2

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8. The instant application was canvassed by way of written submissions which was only filed by the 1st and 3rd Defendants. Submissions 9. The 1st and 3rd Defendants submit that Order 43 Rule 1 (1)(u) of the Civil Procedure Rules grants the Plaintifi an automatic right of Appeal. Further, that the instant application concerns issuance of injunctive orders which this Court already made a determination on, hence the same is res judicata and this Court has become functus oficio on the said issue of injunctions. 10. They submit that if this Court is inclined to consider the prayer for injunction, it should find that the Plaintifi has not met the threshold for grant of injunctions as enumerated in the case of Giella v Cassman Brown & Co. Ltd (1973) EA 358 at pg 36. They point out that the Plaintifi has not established a prima facie case as he has not illustrated any breach of his rights since he is not the proprietor of the suit land while in contrast, they annexed a duly registered indenture and Search outlining their proprietorship of the said suit land. 11. They contend that the Plaintifi did not demonstrate that he will sufier any harm while on their part, they have demonstrated that they will sufier irreparable harm to a tune of Ksh. 400 million, thus the balance of convenience tilts in their favour. They further submit that the Plaintifi also failed to satisfy the threshold for grant of stay orders set out under Order 42 Rule 6 of the Civil Procedure Rules. 12. To buttress their averments, the 1st and 3rd Defendants relied on the following decisions: John Florence Maritime Services Limited & Another v Cabinet Secretary for Transport and Infrastructure & 3 others [2015] KECA 472 (KLR) and Gianfranco Manenthi & Anor. Vs Africa Merchant Assurance Co. Ltd. 2019 KEHC 7586 (KLR). Analysis and Determination 13. Upon consideration of the instant Notice of Motion application including the respective afidavits as well as submissions, the following are the issues for determination:Whether the Plaintifi is entitled to leave to file an Appeal.Whether this Court should grant an order of injunction pending appeal. I will deal with the issues jointly. 14. The Plaintifi seeks for an order of injunction pending Appeal. He seeks to restrain the Defendants from Land Reference Number 36/1/50. The Plaintifi claims to be the registered proprietor of the said land, which is also claimed jointly by the 1st and 3rd Defendants. It is not disputed that vide his earlier application dated 1st February 2024, the Plaintifi sought injunctive orders restraining the Defendants from interfering with the suit land pending determination of the instant suit. Further, vide its Ruling dated the 3rd October 2024, this Court dismissed the said application. Dissatisfied with the said decision, the Plaintifi has filed a Notice of Appeal and intends to Appeal the said decision. 15. Order 43 Rule 1 (1) (u) of the Civil Procedure Rules provides an automatic right of Appeal from Rulings of the nature of temporary injunctions and provides as follows: “ Order 43 Rule 1 Appeals from Orders. 1. (1) An appeal shall lie as of right from the following Orders and rules under the provisions of section 75 (1) (h) of the Act ….. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6137/eng@2025-09-22 3

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(u) 16. Order 40, rules 1, 2, 3,7 and 11 (temporary injunctions);” While Section 75 of the Civil Procedure Act provides that: “ 75. Orders from which appeal lies 1. An appeal shall lie as of right from the following orders, and shall also lie from any other order with the leave of the court making such order or of the court to which an appeal would lie if leave were granted............ h) Any order made under rules from which an appeal is expressly allowed by rules.” 17. In relying on the legal provisions, I have cited, I find that the Plaintifi does not require leave to Appeal against the orders issued on 3rd October, 2024 as it relates to Order 40, rules 1, 2, 3, 7 and 11 on temporary injunctions. 18. On whether the Plaintifi is entitled to an injunction pending Appeal, I will make reference to the case of Charterhouse Bank Limited v Central Bank of Kenya & 2 Others [2007] KECA 395 (KLR), where the Court of Appeal stated that: “ The purpose of granting an injunction pending appeal is to preserve the status quo and to prevent the appeal, if successful, from being rendered nugatory.” 19. The Court of Appeal further stated as follows in David Thiong’o T/A Welcome General Stores v Market Fancy Emporium [2007] KECA 5 (KLR): “ The two ingredients that the Applicant should satisfy for grant of the injunction order are whether the intended appeal is arguable and whether it shall be rendered nugatory should the intended appeal be successful. This was also reiterated by this Court in Nelson Andai Havi v Law Society of Kenya & 3 Others [2018] eKLR, as follows: “ It is trite that at this stage our remit does not extend to determining the merits or otherwise of the Applicant’s intended appeal …. it is restricted to determining on the basis of the material on record, first, whether his intended appeal is arguable, and second, whether, absent an order of injunction, that appeal will be rendered nugatory if it succeeds…...” 20. On the arguability of an appeal, the Court of Appeal stated as follows in Dupoto Farms Limited v Kenya Electricity Transmission Company Limited & 121 Others [2021] KECA 844 (KLR); “ This Court can only grant an order of injunction pending appeal where it is demonstrated that an applicant has an arguable appeal or intended appeal, and that unless the injunction is granted the appeal, if successful, would be rendered nugatory. An arguable appeal is not one that must succeed, it is one that is not frivolous and merits a full consideration by this Court. The applicant need not establish a multiplicity of arguable grounds, even a single one is suficient. ….” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6137/eng@2025-09-22 4

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21. In this instance, I note the Plaintifi filed the instant application which included a prayer for injunction pending Appeal. I note Justice Mbugua, vide her decision dated the 3rd October, 2024 had actually determined the Plaintifi’s application for injunction where he sought to restrain the Defendants or their agents from the suit land, claiming he owned it. In my view, I find that the instant prayer for injunction pending appeal is res judicata as Judge Mbugua already dealt with the application for injunction dated the 1st February, 2024 through her Ruling of 3rd October, 2024. (see the case of John Florence Maritime Services Limited & Another vs Cabinet Secretary Transport & Infrastructure & 3 Others (Petition 17 of 2015) [2021] KESC 39 (KLR) (Civ) (6 August 2021) (Judgment). 22. I opine that this Court cannot sit on Appeal over Judge Mbugua’s decision and I hence find that the efiect of the instant prayer for injunction pending appeal would be to grant an order of injunction, which the Hon. Judge Mbugua failed to grant vide her Ruling of 3rd October 2024. 23. In the foregoing, I find the instant Notice of Motion application unmerited and will proceed to dismiss it with costs to the 1st and 3rd Defendants. DATED SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 22ND DAY OF SEPTEMBER 2025 CHRISTINE OCHIENG JUDGE In the presence of: Hasea for Defendant/Respondent Court Assistant: Joan https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6137/eng@2025-09-22 5

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