Jotham v Kaburu

evicting the plaintiff/applicant from a portion measuring 1.85 Acres of land known as KIERA EAST MAGUTUNI/144 determination pending of this the hearing application and and intended appeal 2. The application was premised on Articles 48 and 50 of the Constitution, Sections 1A, 1B and 3A of the Civil Procedure Act as well as Order 9 Rule 9, Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, 2010 3. On the face of it, the motion is fortified by the grounds outlined and supported by the two affidavits of the applicant, one dated 20th March 2026 and another, dated the 5 th May 2026 4. The defendant was served with the instant motion and a replying affidavit deponed on the 26th March 2026, filed, vehemently opposing the orders sought. 5. Directions were then issued to have the application canvassed by way of written submissions, which I have had sight of and considered. THE APPLICANT CASE: RULING/ELC OS CASE NO. E001 OF 2023 2

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6. In brief, the applicant, through his application, affidavits and set of written arguments dated the 5th May 2026, argued that on 2nd March 2026, he did file an application for stay of execution of the judgement rendered on 23rd February 2023 under certificate of urgency. The application was then heard in chambers by Ogutu Mboya J, on 13th March 2026 where it was dismissed instantly on basis that the judgement was a negative order incapable of being stayed. 7. The applicant contends that from the judgement of the court, delivered on 23rd February 2026, the court had issued eviction orders against him to vacate the suit land within 30 days from the date of delivery which days, lapsed on 23rd March 2026. In addition to the eviction orders, the court had ordered payment of nominal damages for trespass of a sum of Kshs. 300,000.00 8. The applicant adds that he is apprehensive that the respondent may at any time proceed to execute against him and be rendered destitute. Infact, he claims he has been in quiet possession of the suit property for over four decades and the intended appeal shall be rendered nugatory if the stay orders are not granted. RULING/ELC OS CASE NO. E001 OF 2023 3

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9. The applicant fears that substantial loss will be occasioned if the court will not grant the orders. In any event, it was his submission that no prejudice shall be suffered by the respondent if the orders are granted. 10. The applicant expressed willingness to provide security for the decretal sum and urged the court to allow the application as the same has been filed without unreasonable delay THE RESPONDENT CASE 11. As mentioned under paragraph 4 of this ruling, the motion was fiercely opposed through a Replying Affidavit sworn on 26th March 2026 by one, Patricia Muthoni Kaburu. 12. The case of the respondent is that she is a beneficiary of a judgement lawfully acquired. She contends that the intended appeal is vexatious and has low chances of success to allow the applicant to occupy her property pending his appeal. The respondent further contends that part of the judgement was for payment of kshs.300,000.00 in damages, which is a money decree that cannot be stayed. RULING/ELC OS CASE NO. E001 OF 2023 4

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She adds that she is able to refund the amount if the applicant’s appeal succeeds. 13. While summing up her case, the respondent argued that the applicant has failed to prove what loss he will suffer should the execution of the judgement proceed, since the property is not developed; hence she urged the court to dismiss the application with costs as it is not merited. ANALYSIS AND DETERMINATION 14. The court has considered the application, the response to the application, and the parties’ respective submissions. The sole issue pending determination in my view, is whether or not, this court should issue an injunction post-judgment. 15. Order 42 of the Civil Procedure Rules grants this court jurisdiction to issue orders of stay of execution when exercising jurisdiction both as a trial and, an appellant court. 16. Order 42 equally grants the court jurisdiction to issue interlocutory injunctions when exercising jurisdiction as an appellate court. This was adeptly observed by my brother, RULING/ELC OS CASE NO. E001 OF 2023 5

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Eboso J, in the case of Mbae (Suing as the legal representative of M’Nkanata M’Njiima) v Tharaka Nithi County Government (Environment & Land Case E001 of 2022) [2025] KEELC 2995 (KLR) (24 March 2025) where similar sentiments were expressed. 17. As a trial court, this court’s jurisdiction to issue an interlocutory injunction is granted by Order 40 of the Civil Procedure Rules. Once this court renders a judgement in a case before it, it has no extended jurisdiction to grant an interlocutory injunction under Order 40 of the Civil Procedure Rules. 18. Similarly, as a trial court, this court has no jurisdiction to grant a post-judgment interlocutory injunction under Order 42 of the Civil Procedure Rules. It only has powers to grant an interlocutory injunction under Order 42 rule 6 (6) of the Civil Procedure Rules when exercising jurisdiction as an appellate court. 19. This court is seized of the present application as a trial court. It heard the parties involved in the dispute and rendered its Judgement on 23rd February 2026. It dismissed the plaintiff’s suit for lack of merit. The dispute, is no longer pending before RULING/ELC OS CASE NO. E001 OF 2023 6

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this court to warrant grant of an interlocutory injunction. Clearly, the court having rendered a judgement in the dispute, can no longer entertain an application of this nature. That jurisdiction is solely vested in the Court of Appeal under Rule 5 (2) (b) of the Court of Appeal Rules. 20. In consonance to the findings made in the case of Owners of Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] eKLR, this application can not be entertained further at this level, as i am not clothed with jurisdiction to handle the same. 21. On that account and noting this was the only issue pending disposal in the instant motion, I find no basis to allow the Injunction sought. Consequently, i hereby proceed to strike out the application dated 20th March 2026. 22. Further and in tandem with the principle set out under Section 27 of the Civil Procedure Act, the applicant shall bear the costs of this application. 23. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS AT CHUKA THIS 22ND JULY 2026. RULING/ELC OS CASE NO. E001 OF 2023 7

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L.T. LEWA JUDGE IN THE PRESENCE OF: Court Assistant – Nelly Applicant – Mr. Minishi Respondent - Absent RULING/ELC OS CASE NO. E001 OF 2023 8

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