Akech & another (Both Suing as the Personal Representatives of the Estate of Henry Akelo Ongo (Deceased)) v Supreme Ballast Limited & another (Environment and Land Appeal E061 of 2025) [2025] KEELC 18548 (KLR) (18 December 2025) (Ruling) Neutral citation: [2025] KEELC 18548 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT KISUMU ENVIRONMENT AND LAND APPEAL E061 OF 2025 SO OKONG'O, J DECEMBER 18, 2025 BETWEEN SELINA OTIENO AKECH ............................................................... 1ST APPELLANT CONSOLATA AKUMU ANDIEGO ................................................ 2ND APPELLANT BOTH SUING AS THE PERSONAL REPRESENTATIVES OF THE ESTATE OF HENRY AKELO ONGO (DECEASED) AND SUPREME BALLAST LIMITED .................................................. 1ST RESPONDENT SHAJANAND HOLDINGS LIMITED ........................................ 2ND RESPONDENT RULING 1 This is an interlocutory appeal against the ruling of Hon. L.D. Ogombe SPM delivered on 19th June 2025 in Kisumu CMC ELC No. E043 of 2025 (hereinafter referred to as “the lower court suit”). The Appellants, who are the Plaintis in the lower court, are said to have applied for an injunction restraining the Respondents, who are the Defendants in the lower court, from conducting some activities on all that parcel of land known as Title No. Kisumu/Kadongo/1100, which had been amalgamated with other parcels of land to form a new Title No. Kisumu/Kadongo/4651(hereinafter referred to as the suit property). The Appellants’ application before the lower court was dismissed on 19th June 2025, prompting this appeal. The parties have done a great disservice to this court by their failure to annex to the application and/or the replying adavits led herein copies of the pleadings led in the lower court. I am completely at a loss as to the nature of the dispute that the parties have before the lower court, the nature and substance of the application that was before the court, the response that was led thereto, and the ruling of the court on the application, which is the subject of this appeal. The Appellants noted this deciency in the application at the submissions stage and sought to mitigate https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18548/eng@2025-12-18 1
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the same by annexing copies of the pleadings led in the lower court to the submissions. This, however, did not happen. What the Appellants annexed to their submissions was only the replying adavit led by the 2nd Respondent in the lower court, which is not useful. Having regard to the principles upon which the court determines applications of this nature, I have to sound a warning at the outset that, due to the said inadequacy in the application, it would be dicult for the court to determine whether the threshold for granting the order sought has been met. 2 What is before this court for determination is the appellant’s Notice of Motion application dated 4th August 2025, in which the Appellants have sought an order of a temporary injunction restraining the 2nd Respondent from entering, remaining upon, ploughing or carrying out any works of agricultural or industrial nature, particularly quarrying activities, or from erecting or constructing any structure, whether temporary or permanent, upon Title No. Kisumu/Kadongo/1100 as now amalgamated into Title No. Kisumu/Kadongo/4651(the suit property) or from any other way interfering with the Appellants’ peaceful use and occupation of the said property. 3 The application has been brought on the grounds set out on the face thereof and on the supporting adavit of the 1st Appellant sworn on 4th August 2025. The Appellants have averred that on 19th June 2025, the lower court delivered a ruling in which it dismissed the Appellants’ application for a temporary injunction against the 2nd Respondent pending the hearing and determination of the lower court suit. The Appellants have averred that they were dissatised with the said ruling and have preferred the present appeal. The Appellants have averred that following the delivery of the said ruling, the 2nd Respondent has intensied the quarrying and excavation activities on the suit property. The Appellants have averred that the said activities will permanently alter the nature and character of the suit property such that it will be impossible for the Appellants to use the property. 4 The Appellants have averred that they will suer irreparable loss, damage and hardship unless the 2nd Respondent is restrained from continuing with the said activities pending the hearing and determination of this appeal. The Appellants have averred that their appeal raises serious points of law and has very high chances of success. The Appellants have averred that the appeal will be rendered nugatory unless the orders sought are granted. 5 The Respondents oppose the application. The 1st Respondent has opposed the application through a replying adavit sworn by its legal aairs manager, Elka Motanya on 9th September 2025. The 1st Respondent has averred that the 1st Appellant has not demonstrated that she has the authority of the 2nd Appellant to swear the adavit in support of the application on her behalf. The 1st Respondent has averred that it was the lawful registered owner of the suit property. The 1st Respondent has averred that it transferred the suit property to the 2nd Respondent, on whose instructions the property was amalgamated with others to form Title No. Kisumu/Kadongo/4651. The 1st Respondent has averred that the 2nd Respondent is now the lawful owner of the suit property. The 1st Respondent has averred that the Appellants have not demonstrated that they have a prima facie case against the Respondents to warrant the grant of the orders sought. The 1st Respondent has averred that the suit property, having been amalgamated with others, is no longer identiable, and as such, the order of injunction sought cannot attach to it. The 1st Respondent has averred that there is no evidence that the 2nd Respondent has intensied quarrying activities on the suit property to warrant the grant of the injunction sought. 6 The 2nd Respondent has opposed the application through a replying adavit sworn by its director, Chandrant Devji Chhabhadia on 13th October 2025. The 2nd Respondent has averred that it purchased the suit property, which has since been consolidated with others to form Title No. Kisumu/ Kadongo/4651 from the 1st Respondent. The 2nd Respondent has averred that it purchased the suit property for valuable consideration, free from any encumbrances. The 2nd Respondent has averred https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18548/eng@2025-12-18 2
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that after purchasing the suit property, it has been using the same for commercial purposes. The 2nd Respondent has averred that no evidence has been placed before the court in proof of the alleged intensied quarrying activities on the suit property, which is likely to alter the nature and character of the suit property to the prejudice of the Appellants. The 2nd Respondent has averred that the Appellants have not met the threshold for the grant of the order sought. 7 The application was argued by way of written submissions. The Appellants led submissions dated 5th November 2025. The Appellants have submitted that they have established a prima facie case with a probability of success against the Respondents. The Appellants have submitted that they have also demonstrated that they will suer irreparable loss if the injunction sought is not granted. The Appellants have submitted that even if the application were considered on a balance of convenience, the balance of convenience tilts in favour of granting the injunction sought. 8 The 1st Respondent led submissions dated 12th November 2025. The 1st Respondent has submitted that the Appellants’ application has not met the threshold for granting a temporary injunction. The 1st Respondent has submitted that the Appellants have not demonstrated that they have a prima facie case and that they would suer irreparable loss if the orders sought are not granted. The 2nd Respondent led submissions dated 14th November 2025 in which it contended that no valid grounds have been put forward to warrant the grant of the orders sought, which it mistook for a stay pending appeal. Analysis and Determination 9 I have considered the Appellants’ application together with the adavit led in support thereof. I have also considered the adavits in reply and the submissions by counsel. The Appellants’ application seeks an order of a temporary injunction pending the hearing and determination of this appeal by the Appellants. The Appellants’ application was brought principally under Order 42 Rule 6(6) of the Civil Procedure Rules. Order 42 Rule 6 (1) and (6) of the Civil Procedure Rules provides as follows: 6. (1) No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order but, the court appealed from may for sucient cause order stay of execution of such decree or order, and whether the application for such stay shall have been granted or refused by the court appealed from, the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the court from whose decision the appeal is preferred may apply to the appellate court to have such order set aside. (2) … (3) … (4) … (5) … (6) 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.” https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18548/eng@2025-12-18 3
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10 I am not persuaded that the Appellants have established sucient grounds warranting the grant of a temporary injunction pending appeal. The principles that this court applies in applications for temporary injunction pending appeal are not dierent from those employed by the Court of Appeal on applications for temporary injunction pending the hearing of appeals to that court under Rule 5(2) (b) of the Court of Appeal Rules. As set out in Order 42 Rule 6 (6) of the Civil Procedure Rules, the power to grant an injunction pending appeal is discretionary and is guided by the interests of justice. In the exercise of this discretion, the court must be satised that the appeal before it is arguable and that if the order sought is not granted and the appeal succeeds, the appeal will be rendered nugatory. 11 In Trust Bank Limited and Another v. Investech Bank Limited and 3 Others [2000] eKLR, the Court of Appeal stated that: 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 rstly 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…” 12 13 In Stanley Kang’ethe Kinyanjui v. Tony Ketter & 5 others [2013] eKLR, the same court stated as follows in part: vi) On whether the appeal is arguable, it is sucient if a single bona de arguable ground of appeal is raised. Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Ltd, Civil Application No. Nai 345 of 2004. vii. An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous. Joseph Gitahi Gachau & Another v. Pioneer Holdings (A) Ltd. & 2 others, Civil Application No. 124 of 2008.” As mentioned earlier in the ruling, the parties have not placed before me the pleadings led in the lower court. I have not seen the application that was led by the Appellants in the lower court or the ruling of the lower court thereon. I have perused the Appellants’ eight (8) grounds of appeal against the ruling of the lower court. This court can only determine whether the Appellants’ appeal is arguable or not upon perusing the application that was before the lower court, the response thereto by the Respondents, and the ruling of the lower court. In the absence of these documents, which I am unable to access, it is dicult for me to appreciate the issues raised in the grounds of appeal. I cannot, therefore, determine whether any of the grounds of appeal is arguable. Although the quarrying activities complained of by the Appellants may alter the nature and character of the land in dispute, thereby rendering the appeal, if successful, nugatory, without the Appellants establishing that they have an arguable appeal against the lower court ruling, the court cannot issue an order of injunction pending appeal in their favour. Conclusion 14 The upshot of the foregoing is that the Appellants’ Notice of Motion application dated 4th August 2025 has no merit. The application is dismissed with costs to the Respondents. DELIVERED AND SIGNED AT KISUMU ON THIS 18TH DAY OF DECEMBER 2025 S. OKONG’O JUDGE https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18548/eng@2025-12-18 4
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Ruling delivered virtually through Microsoft Teams Video Conferencing Platform in the presence of: Ms. Odhong’ for the Appellants Mr. Mwesigwa for the 1st Respondent Ms. Ogola h/b for Maganga for the 2nd Respondent Ms. J. Omondi-Court Assistant https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/18548/eng@2025-12-18 5
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