Sande v Nduku (Environment and Land Case E024 of 2024) [2025] KEELC 6407 (KLR)

4. b. The Respondent, not having been a party to Nairobi Environment and Land Case No. 336 of 2017 (OS) between the Appellant and Simon Njuguna Chege and hving not derived title to Nandi/Dagoretti/Karandi-ini/20 as successor to or assignee of the title from Simon Njuguna Chege, the doctrine of res judicata could not apply to the dispute between the Appellant and the Respondent and the Learned magistrate was wrong and erred in striking the Appellant’s suit in the Court below. c. The Learned Magistrate erred and was wrong and striking out the Plaintifi’s suit as the cause of action between the Appellant and the Respondent arose in the year 2023 when the Respondent had attempted to evict the Appellant from land parcel number Nairobi/ Dagoretti/Karandi-ini/20, and the issues between the Appellant and the Respondent were difierent and separate from the issues between the Appellant and Simon Njuguna Chege in ELC No. 336 of 2017 (OS). d. Having noted that the dispute between the Appellant and Simon Njuguna Chege was still the subject of an Appeal by the Appellant to the Court of appeal, the Learned Magistrate was wrong and erred in holding that the dispute in ELC No. 336 of 2017 (OS) had been finally decided and was therefore res judicata. e. The Learned Magistrate was wrong and erred in striking out the Appellant’s suit on the ground of res judicata. He has similarly filed an application dated 29th February 2024 in which he seeks the following orders; a. That pending hearing and determination of the application, the Respondent his servants, and/ or agents be stopped and restrained from evicting or attempting to evict or in any manner interfere with the Appellant’s occupation and enjoyment of property suit title Nairobi/ Dagortetti/Karandi-ini/20. b. That pending hearing and determination of the appeal, the Respondent his servants, and/ or agents be stopped and restrained from evicting or attempting to evict or in any manner interfere with the Appellant’s occupation and enjoyment of property suit title Nairobi/ Dagortetti/Karandi-ini/20. c. That the oficer commanding station (OCS) satellite police station do oversee and supervise the enforcement of the orders. d. Costs of the application. 5. In response to the present application the Respondent has filed a replying afidavit dated 11th March 2024 and further afidavit sworn on the 10th February 2025. It is the case of the Respondent that the appeal has no chance of success and thus the Appellant should not be granted the orders on an appeal which has no possibility of success. The Respondent argues that according to the latest search dated 5th February 2025, he is the registered owner of the suit property. This counters the argument by the Appellant that he is not the owner. 6. The parties filed written submissions which the court has duly considered. Having considered the application and responses filed the sole issue for determination is whether the application for injunction pending appeal is merited. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6407/eng@2025-06-12 2

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7. This court has the requisite jurisdiction to grant an order of injunction under section 13 (7) of the Environment and Land Court Act No. 19 of 2011 which provides that; In the exercise of its jurisdiction under this Act, the Court shall have the power to make any order and grant any relief as the Court deems fit and just, including—(a)interim or permanent preservation orders including injunctions; 8. This Court is further empowered to grant a temporary injunction pending appeal under Order 42 Rule 6(6) of the Civil Procedure Rules which provides as follows; “ Notwithstanding anything contained in Subrule (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. Justice Alnashir Visram in the case of Patricia Njeri & 3 Others V National Museum of Kenya [2004] eKLR. stated; “ In the Venture Capital case, the Court of Appeal said that an order for an injunction pending appeal is a discretionary matter. The discretion must, however, be "exercised judicially and not in whimsical or arbitrary fashion." This discretion is guided by certain principles some of which are as follows:’ (a)The discretion will be exercised against an Applicant whose appeal is frivolous (See Madhupaper International Limited vs Kerr (1985) KLR 840 (cited in Venture Capital). The Applicant must state that a reasonable argument can be put forward in support of his appeal (J. K. Industries vs KCB (1982 – 88) KLR 1088 (also cited in Venture Capital) (b)The discretion should be refused where it would infiict greater hardship than it would avoid (See Madhupaper supra). (c)The Applicant must show that to refuse the injunction would render his appeal nugatory (See Butt vs Rent Restriction Tribunal (1982) KLR 417 (cited also in Venture Capital). (d)The Court should also be guided by the principles in Giella vs Cassman Brown & Company Ltd (1973) EA 358 as set out in the case of Shitukha Mwamodo & Others (1986) KLR 445 (also cited in Venture Capital). 10. In the Court of Appeal case Trust Bank Limited & Another vs. Investech Bank Limited and 3 others [2000] eKLR, the court posited; “ The jurisdiction of the Court under rule 5 (2) (b) is original and discretionary and it is trite law that to succeed an applicant has to show firstly that his appeal or intended appeal is arguable, to put another way, it is not frivolous and secondly, that, unless he is granted a stay the appeal or intended appeal, if successful will be rendered nugatory. These are the guiding principles but these principles must be considered against facts and circumstances of each case…” 10. Guided by the foregoing principles I find that in considering whether to grant an injunctive relief pending appeal the court considers whether the appeal is arguable, and secondly that it will be rendered nugatory if the injunction is not granted. https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6407/eng@2025-06-12 3

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11. The appeal herein arises from a ruling of the trial court dismissing the application by the applicant seeking an injunction. The trial court declined to grant the temporary injunction sought and instead dismissed the application on the basis that the application was res judicata as a similar claim by the same applicant had been dismissed by the Environment and Land Court. This claim was considered and determined in ELC 336 of 2017. After considering this lower court struck out the suit. 12. In the Ruling the Court considered that the Appellant had filed ELC 336 of 2017 seeking orders that he had acquired the suit property by way of adverse possession. The court noted that the Appellant conceded that there was indeed a Judgement in the case before the Environment and Land Court but argued that he wished to pursue a fresh claim against the new Defendant who is the Respondent herein. 13. The fact of the existence of ELC 336 of 2017 was not contested by the Appellant in this court or in the magistrates court. He has not also disputed the fact that Judgement was entered against him in the said matter in which the question of adverse possession was addressed. In view of this it is dificult to find that he has met the test of an arguable appeal as set out in various cases namely; Trust Bank versus Amalo Company Ltd (2002) EA 628 and Stanley Kangethe Kinyanjui versus Tony Ketter & others (2013) eklr. 14. I therefore find that the application has no merit and is dismissed with costs to abide the outcome of the appeal. RULING SIGNED, DATED AND DELIVERED VIA MICROSOFT TEAMS ON 12TH OF JUNE, 2025 JUDY OMANGE JUDGE In the presence of: Court Assistant Catherine Mr. Keyonzo for Applicant Mr. Wanjama for Respondent https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6407/eng@2025-06-12 4

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