Machoki v M’Ituamikwa & another

building on, depositing materials on, farming on, harvesting from, cutting trees from, or in any way interfering with the appellant’s use and occupation of land parcel number Nyambene/Kirindine “A”/3837 [the suit land]. Through the impugned ruling, the Lower Court dismissed the appellant’s application, observing that the appellant had failed to exhibit the sale agreement through which she alleged to have purchased the suit land. The Lower Court further faulted the appellant for failing to tender evidence demonstrating that she paid purchase price for the suit land. 3. Upon filing the memorandum of appeal, the appellant brought a notice of motion dated 26/5/2026, seeking an interlocutory injunction order in terms similar to what she had sought in the Lower Court. The said application is the subject of this ruling. 4. The application was premised on the grounds outlined in the motion and in the applicant’s affidavit dated 26/5/2026. It was canvassed through written submissions dated 17/7/2026, filed by M/s Ngunjiri Michael & Co Advocates. The case of the applicant is that, together with her late husband, they bought the suit land from the 1st respondent in 2002. They were put in possession of the suit land and have enjoyed uninterrupted quiet possession of the land for over 23 years. 5. It is the case of the applicant that her appeal raises serious arguable issues of law and fact and has overwhelming chances of success. She contends that she has extensively developed the suit property, including planting and maintaining tea bushes; planting nappier grass; constructing and establishing ELCEPA NO. E004 OF 2026 - RULING 2

page 2 of 7

residential developments thereon; and continuous utilization and occupation of the suit property for livelihood. 6. She states that when she discovered the 1st respondent had secretly transferred the suit land to the 2nd respondent, she filed Maua CMC E & L Case No E045 of 2025 together with an application for interlocutory injunctive orders. She adds that by a ruling delivered on 11/5/2026 her application was dismissed. Dissatisfied with the entire ruling of the Lower Court, she lodged this appeal. 7. The applicant contends that the respondents have threatened and continue threatening to evict her from the suit land, adding that unless the orders sought are granted, she risks being unlawfully evicted from land that she bought in 2002 and has developed and occupied for over 23 years. She argues that the respondents will not suffer any prejudice if the orders sought are granted, unlike her who stands to suffer irreparable loss and damage if she is evicted. She states that it is in the interest of justice and fairness that the status quo is preserved pending the hearing and determination of the appeal. Lastly, she argues that the balance of convenience tilts in favour of preserving the existing state of affairs and maintaining her in possession of the suit land, pending the hearing and determination of the appeal. 8. Both respondents did not step forward to respond to the application. Consequently, the application is uncontested. 9. The court has considered the application and the submissions tendered. The court takes into account the fact that the ELCEPA NO. E004 OF 2026 - RULING 3

page 3 of 7

application is uncontested. The single question falling for determination in this ruling is whether the application meets the criteria upon which this court exercises jurisdiction to grant an ordinary interlocutory injunction when exercising appellate jurisdiction. 10. The jurisdiction of this court to grant a temporary injunction pending the hearing and determination of an appeal before it is granted by Order 42 rule 6(6) of the Civil Procedure Rules. This provision grants the court discretionary powers to grant interlocutory injunctive orders on such terms as it deems fit, so long as the procedure for filing an appeal from a subordinate court has been complied with. It provides 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 subordinate court or tribunal has been complied with.” 11. Over the years, Kenya’s superior courts have developed principles that guide the exercise of the above jurisdiction (see (i) Madhupaper International Limited Vs Kerr [1985] KLR 840; (ii) Venture Capital & Credit Limited Vs Consolidated Bank of Kenya Ltd; Civil Application No. 349 of 2003 (174 of 2003 UR); and (iii) Butt V Rent Restriction Tribunal (1982) KLR 417). ELCEPA NO. E004 OF 2026 - RULING 4

page 4 of 7

12. Suffice it to state that, the jurisdiction of a first appellate court to grant an interlocutory injunction under Order 42 rule 6(6) of the Civil Procedure Rules is a discretionary and equitable one. Secondly, the discretion will not be exercised in favour of an applicant whose appeal is frivolous; the applicant must demonstrate that a reasonable argument can be put forward in support of his appeal. Thirdly, the discretion should be refused where it would inflict greater hardship than it would prevent. Fourthly, the applicant must show that refusal to grant the injunction would render his appeal nugatory. Fifth, the court is to be guided by the principles in Giella vs Cassman Brown & Company Ltd [1973] EA 358 (Supra). Lastly, whenever disposing a plea for an interlocutory injunction, the court does not make definitive or conclusive pronouncements on the key issues in the dispute. 13. The gist of the criteria in Giella v Cassman Brown [1973] EA 358 that must be satisfied for a court to issue interlocutory injunctive orders are that: (i) the applicant is required to demonstrate a prima facie case with a probability of success; (ii) the applicant is required to demonstrate that if the injunction is denied, he will stand to suffer irreparable injury which would not adequately be compensated by an award of damages; and (iii) where the court has doubt on the applicant’s satisfaction of either or both of the above requirements, the application is to be determined on the basis of the balance of convenience. 14. In Mrao Ltd v First American Bank of Kenya Ltd & 2 Others (Civil Appeal 139 of 2002) (2003) KECA 175(KLR), the Court of Appeal defined a prima facie case as follows:- ELCEPA NO. E004 OF 2026 - RULING 5

page 5 of 7

“A prima facie case in a civil application includes but is not confined to “genuine and arguable case…….It is a case presented to the which, court, a on the material tribunal properly directing itself will conclude that there exists a right which has apparently been infringed by the opposite party as to call for an explanation or rebuttal from the latter”. 15. The Court of Appeal in the case of University of Nairobi v Ricatti Business of East Africa [2020] eKLR stated the following about an arguable appeal:“An arguable appeal is also not one which must necessarily succeed, but one which ought to be argued fully before the Court; one which is not frivolous.” 16. In the present application, the appellant contends that she entered the suit land upon purchasing it in 2002 and she has been in peaceful and uninterrupted occupation of the land for the last 23 years. She contends that she has extensively developed the suit land and has her residence on the land. It is her case that while the 1st respondent was aware that he had sold the land to her and she was residing on the land, he caused the land to be secretly transferred to the 2nd respondent. She adds that there are threats to evict her from the land. She faults the Lower Court for ignoring the above contextual background. ELCEPA NO. E004 OF 2026 - RULING 6

page 6 of 7

17. At this stage, the respondents have not stepped forward to respond to the applicant’s claim and allegations [See the affidavit of service dated 11/6/2026]. In the circumstances, the court is satisfied that the criteria for granting an ordinary interlocutory injunction under Order 42 rule 6(6) of the Civil Procedure Rules has been met. Consequently, an interlocutory order is hereby granted in terms of prayer 3 of the notice of motion dated 26/5/2026. Unless extended by the court, the interlocutory injunction shall lapse on expiry of nine (9) months from today. Costs of the application shall be in the appeal. DATED, SIGNED AND DELIVERED AT MERU THIS 16TH DAY OF SEPTEMBER, 2026 B M EBOSO [MR] ELC JUDGE ELCEPA NO. E004 OF 2026 - RULING 7

page 7 of 7