Registered Trustees Catholic Archdiocese of Mombasa v Joseph P. Kariithi & 4 others

from selling, offering for sale, transferring, charging, mortgaging, and/or dealing in any manner whatsoever with Land Parcel Number Kwale/Kidimu/12 pending the hearing and determination of the intended appeal against the Defendants at the Court of Appeal; THAT this Honourable Court be pleased to grant an Order to Compel the 1 st VII. and 2nd Defendants to surrender to the 3rd Defendant the title deed in respect to Land Parcel Number Kwale/Kidimu/12 for custody pending the hearing and determination of the intended appeal against the Defendants at the Court of Appeal; VIII. THAT this Honourable Court be pleased to grant an Order to Compel the 3 rd and 4th Defendants/Respondents to preserve the integrity of all the records and/or register pertaining to Land Parcel Number Kwale/Kidimu/12 held at their respective offices and refrain from registering, recording, or otherwise entering any new dealings, transfers, or alterations in their respective registers pending the hearing and determination of the intended appeal against the Defendants at the Court of Appeal; and IX. THAT this Honourable Court be pleased to make an Order for Costs in respect of this Motion. 3. The application is premised on the grounds set out therein and supported by the affidavit sworn by FATHER MARSALIUS OKELLO on 13 th April 2026. He deposed that he is an ordained priest at the Catholic Archdiocese of Mombasa and one of the registered trustees of the archdiocese the plaintiffs herein, conversant with the facts of the case. That judgement was delivered on 2 nd February 2026 dismissing the Plaintiffs’ suit and vacating the Order of Inhibition issued to preserve Land Parcel Number Kwale/Kidimu/12 measuring approximately 71.1 hectares (the suit property). Page | 2 ELCC 70 OF 2021

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4. Upon delivery of the judgment, the Court granted a temporary inhibition of 21 days and directed the Plaintiffs to file a formal application to preserve the suit property pending the intended appeal. 5. He noted that the Plaintiffs are aggrieved by the judgment and decree of this Court and have preferred an appeal and have since lodged a notice of appeal. He deposes that the appeal raises arguable and substantial issues regarding the finding that the alleged fraud was committed during the succession proceedings before the High Court and at the adjudication process. 6. It was the plaintiffs’ fear that the suit property valued at an estimated Kshs. 100,000,000.00 was in danger of being disposed of, the Defendants having already extracted the Decree and that it is in the interest of justice that the integrity of the record is preserved pending determination of the appeal. 7. The deponent confirmed that the application has been brought without unreasonable delay and any delay was occasioned by the transition in leadership within the Plaintiffs’ administration. That the Plaintiffs will suffer substantial loss as the land may be alienated whilst the Defendants will suffer no prejudice if preservation orders are issued and that the balance of convenience favours preventing disposal of the suit property. 8. The 1st and 2nd Defendants opposed the application vide a Replying Affidavit sworn by MISHECK MUNYIRI KARIITHI on 22nd April 2026. He deponed that having delivered its judgment on 2nd February 2026, the Court became functus officio and cannot be invited to re-open or re-litigate matters already decided by a Court of Competent jurisdiction. That the application seeks a grant of interlocutory and final reliefs already denied by the trial Court and as such the applicant was asking the Court to sit on appeal over its own judgment. Page | 3 ELCC 70 OF 2021

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9. He dismissed the allegation that the Court found that the 1st and 2nd Respondent acted “criminally” as false and misleading and gross distortion of the judgment and noted that the Court did not invalidate their title. 10.He too disputed the assertion that they intend to dispose of the suit land and noted that the same were unsupported by evidence and that, in any event, nothing barred them from alienating their land. 11.He further deposed that the Plaintiffs have failed to demonstrate any arguable appeal capable of being rendered nugatory and that the mere filing of the Notice of Appeal did not entitle the Plaintiffs to the orders sought. He too argued that the Plaintiffs had not demonstrated any substantial loss and that the balance of convenience favours allowing the Respondents to enjoy the fruits of their judgment. 12.He argued that the allegations of fraud and criminal conduct fall for investigations through the criminal justice system which process the Plaintiffs have already invoked. He viewed any order of surrender of their title to the 3 rd Defendant oppressive, draconian and unavailable at an interlocutory stage. He argued that the defendants have been deprived of their suit property since the institution of the suit and issuance of the preservatory orders around 2020, and any continued injunctive reliefs hence would gravely prejudice them. They thus sought that the application be declined and should the Court be inclined to grant, the same ought to be on condition that the Plaintiffs furnish security of Kshs. 100,000,000/=, being the value of the land, in Court or in a joint interest earning account in the name of Counsel. 13.The Plaintiffs filed a further affidavit sworn by FATHER MARSALIUS OKELLO on 27th July 2026. It was deponed that the Court was not functus officio by virtue of the Court granting a temporary injunction of 21 days after delivery of the Page | 4 ELCC 70 OF 2021

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judgment and the directions for the Plaintiffs to file a formal application. He argued that the Court has jurisdiction to grant orders for the preservation of the subject matter pending appeal as the Defendants were likelihood to alienate the suit property to defeat the appeal, which appeal raises weighty and arguable issues and has reasonable prospect of success. 14.He surmised that the surrender of the title is for safe custody and does not divest the 1st and 2nd Defendants of ownership and that the 1st and 2nd Defendants will suffer no prejudice as they remain in possession of the suit property as compared to the prejudice they would suffer if the property is disposed of. He argued that the decree is not money decree to require deposit of the decretal sum and that the dismissal of a suit is a negative order incapable of execution. He thus surmised that to require the Church to deposit the entire value of the land as a condition to be heard on appeal would be tantamount to imposing a penalty for exercising its undoubted right of appeal. 15.When the matter came up for directions, counsels opted to converse the application by way of written submissions. Plaintiffs’ submissions 16.The Plaintiffs filed their submissions dated 27 th July 2026. They submitted that the application was properly before the Court by virtue of Order 40 Rule 2(1) of the Civil Procedure Rules. They refuted the assertion that the court was functus officio and submitted that the Court has inherent jurisdiction to grant a protective injunction pending appeal to protect the subject matter. 17.The plaintiffs further submitted that they had satisfied the requisite conditions for a grant of interlocutory injunction pending appeal. They submitted that they have an arguable appeal and set out their arguments to that effect. That unless the orders were Page | 5 ELCC 70 OF 2021

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granted, the impending appeal will be rendered nugatory. That permanent alienation of the property cannot be adequately remedied through financial compensation as the third parties’ title would secure absolute protection. That balance of convenience lies in their favour. 18.On the issue of security, it was submitted that there was no executory decree or financial judgment to satisfy to warrant imposition of security. They argued that they were willing to comply with any reasonable terms the Court deems equitable. 1st and 2nd Defendants’ submissions 19.The 1st and 2nd Defendants filed their submissions dated 4 th September 2026. They submitted that the Court was functus officio and the Plaintiffs’ redress if aggrieved by the judgment of the Court was in the appellate process. 20.They submitted that the Plaintiffs had satisfied the conditions for stay of execution as provided under the provisions of Order 42 Rule 6(2) of the Civil Procedure Rules 2010. That they have neither demonstrated that they would suffer substantial loss nor offered security. That the allegations that they would sell the land was purely speculative. It was their submissions that the Plaintiffs did not establish that their intended appeal would be rendered nugatory. They further submitted that the Plaintiffs had not demonstrated that they had an arguable appeal as the appeal was premised on allegations of criminality and fraud. They urged the Court to impose security for costs, in the unlikely event that the Court was amenable to granting the injunctive reliefs sought. 21.They submitted that the allegations of criminality ought not to be used to indirectly preserve orders which ceased to exist upon delivery of the judgment. It was their Page | 6 ELCC 70 OF 2021

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submissions that the balance of convenience overwhelmingly favoured them as their land had been subjected to restrictions since 2020 and that they ought to enjoy the fruits of their judgment. 22.Refence was made to the several authorities among them Mathenge v Mahinda Civil Appeal E060 of 2025) [2026] KEHC 4005 (KLR), Mputhia v M Miriti (Civil Appeal E088 of 2024) [2025] KEHC 756 (KLR), James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR, Njaria & 15 Others v Gatheca & Another [2023] KECA 516 (KLR) and Njaria & 15 Others v Gatheca & Another [2023] KECA 516 (KLR). Issues for determination 23.I have carefully read and considered the Plaintiffs’ Application dated 13 th April 2026, 1st and 2nd Defendants’ Replying Affidavit, Plaintiffs’ Further Affidavit, the submissions, and the relevant legal provisions. 24.The Court discerns the following issues for determination: i) Whether the Plaintiffs’ application dated 13th April 2026 is merited. ii) Who should bear costs of the application? Analysis and determination 25.In a nutshell, the Plaintiffs’ application seeks prohibitory injunction restraining the 1 st and 2nd Defendants from alienating and or dealing with the suit property, an order compelling the 1st and 2nd Defendant to surrender their title to the 3 rd Defendant for custody and an order compelling the 3rd Defendant to preserve the integrity of all records and register pertaining to the suit property pending the hearing and determination of the intended appeal at the Court of Appeal. Page | 7 ELCC 70 OF 2021

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26. The 1st and 2nd Defendants aver that the Court is functus officio having delivered its judgment on the issues between the parties. They are of the view that the application is an attempt by the Plaintiffs to relitigate the issues already determined and is an invitation to the Court to sit on an appeal against its own decision. 27. The issue of whether the Court is functus officio is a threshold question touching on the jurisdiction of the Court and ought, therefore, to be determined at the earliest opportunity. Where the Court finds that it lacks jurisdiction, it must down its tools. The issue of jurisdiction must therefore be resolved before the Court considers the other issues arising in the suit. 28. It is trite that jurisdiction is everything and, without it, a court has no power to take any further step in a matter. This was stated in the classicus case of The Owners of the Motor Vessel “Lillian S” –vs- Caltex Oil (Kenya) Ltd (1989) KLR 1. where Nyarangi J.A. held as follows: “I think that it is reasonably plain that a question of jurisdiction ought to be raised at the earliest opportunity and the Court seized of the matter is then obliged to decide the issue right away on the material before it. Jurisdiction is everything. Without it, a Court has no power to make one more step. Where a Court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence. A Court of law downs tools in respect of the matter before it the moment it holds the opinion that it is without jurisdiction.” 29. It behooves the Court to consider whether it is clothed with jurisdiction to determine the application in light of the doctrine of functus officio. The doctrine was described in the case of Jersey Evening Post Limited v A1 Thani [2002] JLR 542 at 550 as cited Page | 8 ELCC 70 OF 2021

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with approval by the Supreme Court in the case of Odinga v Independent Electoral & Boundaries Commission & 3 others [2013] KESC 8 (KLR) “A court is functus when it has performed all its duties in a particular case. The doctrine does not prevent the court from correcting clerical errors nor does it prevent a judicial change of mind even when a decision has been communicated to the parties. Proceedings are only fully concluded, and the court functus, when its judgment or order has been perfected. The purpose of the doctrine is to provide finality. Once proceedings are finally concluded, the court cannot review or alter its decision; any challenge to its ruling on adjudication must be taken to a higher court if that right is available”. 30.In Skycrapers Africaway Company Limited & another v First Community Bank Limited & another [2025] KEHC 7264 (KLR), Gikonyo J in determining an application for an injunction pending an appeal, made after the delivery of judgment, observed that: “16. The 1st respondent argued that the court cannot, at this juncture, exercise jurisdiction to grant a temporary injunction under Order 40 since it has already determined the parties' rights through the judgment. 17. If a court does not have jurisdiction, it must put down its tools. Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR) (17 November 1989) (Judgment) 18. The applicants relied on Order 42 Rule 6 of the Civil Procedure Rules and Rule 5 (2) (b) of the Court of Appeal Rules to support the proposition that this court has the jurisdiction to order an injunction pending appeal. Page | 9 ELCC 70 OF 2021

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19. However, the court’s power to grant an injunction pending appeal is distinctive or sui generis. It falls under Section 3A of the Civil Procedure Act.” (Emphasis added) 31.In James Juma Muchemi & Partners Ltd v Barclays Bank of Kenya Ltd [2011] KEHC 4277 (KLR), Mabeya J distinguished between an application for injunction pending appeal and application for stay. He observed that: “I have seen the Notice of Appeal filed in this court on 8 th September, 2011. While I cannot delve into any of the issues which the Plaintiff seeks to agitate in the Court of Appeal as set out in the draft Memorandum of Appeal exhibited in the application before the Court of Appeal, I am of the view that the Provisions of Order 42 Rule 6 (2) may not be applicable in its strict sense to the application before me. That Rule is for stay of execution pending appeal. If I understood Mr. King’ara well, the application has been brought under the principles of the Erinford Properties case. In that case, the issue that was considered and decided upon was whether a judge who has dismissed an injunction application can at the same time grant one pending an appeal to the Court of Appeal. Clearly, it was not an issue of a stay of any execution pending appeal. Although granting the prayer sought may amount to the same thing as stay of execution as Megarry J found, the considerations applicable in the Erinford Principle may not be the same to those under Order 42 Rule 6(2). There is no provision to grant an injunction pending appeal to the Court of Appeal under Order 42 Rule 6. My understanding is that Order 42 rule 6 (2) in its strict sense applies in a situation where a stay of execution of an order or decree is being sought whilst under the Erinford Principle, it applies where an injunction is being sought pending appeal. An examination of the application before me will show that the prayers sought are not for stay of execution Page | 10 ELCC 70 OF 2021

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pending appeal, but grant of the declined injunction pending the hearing and determination of an application under Rule 5 (2) (b) of the Court of Appeal Rules. In my view therefore, when a court in Kenya is applying the Erinford Properties Principles, it does so under its inherent jurisdiction.” 32.In Erinford Properties –vs- Cheshire County Council (1974) 2 ALL ER 448, Megarry J as cited with approval by the Court of Appeal in Madhupaper International Limited v Kerr [1985] KLR 840 the Court had dismissed an application for interlocutory injunction. The learned Judge subsequently proceeded to grant an ex-parte injunction to the Plaintiff pending an appeal to the Court of Appeal of England. The Defendant applied to discharge that injunction on the ground that the court was functus officio. In dismissing the Defendant’s application and granting the injunction pending appeal Megarry J. observed at pg 454 as follows; “…On the other hand, where the application is for an injunction pending an appeal, the question is whether the judgment that has been given is one on which the successful party ought to be freed to act despite the pendency of an appeal. One of the important factors in making such decision of course is the possibility that the judgment may be reserved or varied. Judges must decide cases even if they are hesitant in their conclusions; and at the other extreme a judge may be very clear in his conclusions and yet on appeal be held to be wrong. No human being is infallible and for none are there more public and authoritative explanations of their errors than for judges. A judge who feels no doubt in dismissing a claim to an interlocutory injunction may, perfectly consistently with his decision, recognize that his decision might be reversed, and that the comparative effects of granting or refusing an injunction pending an appeal are such that it would be right to preserve the status quo pending the appeal. I cannot see that a decision that no injunction should be granted Page | 11 ELCC 70 OF 2021

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pending the trial is inconsistent, either logically of otherwise with holding that an injunction should be granted pending an appeal against the decision not to grant the injunction, or that by refusing an injunction pending trial the judge becomes functus officio quoad granting any injunction at all.” 33. The Court in James Juma Muchemi & Partners Ltd v Barclays Bank of Kenya Ltd, supra, rendered itself as follows; “From the foregoing decisions of the Court of Appeal, I am satisfied and I hold that this court has jurisdiction to entertain a proper application brought under the Erinford Principles. Accordingly, I reject the Defendant’s contention that this court is functus officio or lacks jurisdiction or that I would be sitting on appeal on the ruling of 8/9/2011 if I entertained the Plaintiff’s application before me.” 34.Guided by the foregoing authorities, this Court is satisfied that it is clothed with the requisite jurisdiction pursuant to the provision of Section 3A of the Civil Procedure Act to entertain an application for an injunction under the provisions of Order 40 Rule 2(1) of the Civil Procedure Rules pending appeal. It is clear that an application for Injunctive orders pending appeal is not an application for stay of execution of a judgement under Order 42 rule 6 (2) of the Civil Procedure Rules as submitted by the 1st and 2nd defendant and the principles applicable are therefore not the principles provided for under that rule. It is similarly crystal clear that the court is not functus officio and doctrine of functus officio does not bar the Court from considering the instant application. Page | 12 ELCC 70 OF 2021

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35.The court in Skycrapers Africaway Company Limited & another v First Community Bank Limited, supra, set out the principles to be considered in an application for injunction pending appeal. The Court held that: “Injunction pending appeal 29. In my view, in determining whether to grant an injunction pending appeal, the overarching principle is to exercise discretion so as to prevent an appeal from being rendered nugatory. Butt v Rent Restriction Tribunal [Supra] 30. The Court of Appeal in the Madhupaper case stated that the test is “whether or not the company has made out its claim for an injunction to preserve its property until the appeal is heard? Or is it an application which ought to fail because the appeal is frivolous or it would be worse for the company if the injunction went forth or for any other reason?” 36.The Plaintiffs have annexed a copy of the Notice of Appeal dated 11 th February 2026 and a draft Memorandum of Appeal dated 4th March 2026 as “FMO-1” and “FMO-2” respectively, in support of their application. However, there is no evidence on record indicating whether the Plaintiffs have lodged the intended appeal before the Court of Appeal. 37.The Plaintiffs contend that they have an arguable appeal that raises substantial questions, particularly concerning the finding that the alleged fraud was committed during the succession proceedings before the High Court and during the adjudication process. The 1st and 2nd Defendants, on the other hand, submit that the Plaintiffs have failed to demonstrate that they have an arguable appeal. Page | 13 ELCC 70 OF 2021

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38.In Wasike v Swala [1984] eKLR 591, the Court of Appeal held that an arguable appeal is not one which must necessarily succeed, but one that merits consideration by the appellate court. The Court further recognized that an arguable appeal is one which is not idle or frivolous. 39.In determining whether an intended appeal raises serious questions for consideration, the Court is not required to undertake a detailed examination of the merits of the appeal. Having considered the grounds set out in the draft Memorandum of Appeal, the Court is satisfied that the intended appeal raises substantial questions deserving of consideration by the Court of Appeal. The Plaintiffs have, accordingly, demonstrated an arguable appeal for purposes of this application. 40.The Court is then required to consider whether the intended appeal will be rendered nugatory if the injunction sought is not granted. 41. In Re: Estate of Harish Chandra Hindocha (Deceased) [2021] eKLR, the Court of Appeal stated, inter alia, that: “Turning to the second prerequisite, the position in law is that, an appeal would be rendered nugatory if the consequential effects for the failure to grant the relief sought would be either irreversible or highly prejudicial so as to render of no consequence the intended appeal or appeal if ultimately successful.” 42.The Plaintiffs argue that their intended appeal would be rendered nugatory if the injunction is not granted, on the basis that the 1 st and 2nd Defendants were likely to dispose of the suit property. They argued that their apprehension was founded on Page | 14 ELCC 70 OF 2021

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previous attempts by the 1st and 2nd Defendants to dispose of the suit property during the pendency of the suit. They submitted that a disposition of the suit property to third parties would render the intended appeal nugatory as it would complicate the enforcement of any orders if their appeal succeeds. 43.The 1st and 2nd Defendants, on the other hand, argue that the Plaintiffs have not demonstrated that the intended appeal would be rendered nugatory unless the orders sought are granted. They submitted that the Plaintiffs’ alleged risk of the 1 st and 2nd Defendant disposing the suit was purely speculative and unsupported by sufficient evidence. 44. In the case of African Safari Club Limited v Safe Rentals Limited [2010] eKLR, the Court of Appeal held: “…with the above scenario of almost equal hardship by the parties, it is incumbent upon the court to pursue the overriding objective to act fairly and justly…to put the hardships of both parties on scale… we think that the balancing act is in keeping with one of the principles aims of the oxygen principle of treating both parties with equality or placing them on equal footing in so far as is practicable.” 45. The court is therefore called to balance the prejudice or hardship that the plaintiffs will suffer if the injunction is not granted and the 1 st and 2nd defendants go ahead and sell the suit property vis a vis the prejudice and hardship the 1 st and 2nd defendants will suffer if the rights appurtenant to their proprietorship are put on hold pending the hearing of the appeal. The 1st and 2nd Defendants will only be restrained from dealing with or disposing of the suit property pending the determination of the intended appeal. Their proprietary interests in the suit property will remain unaffected, subject to the outcome of the appeal. On the other hand, if the injunction is not granted and the suit Page | 15 ELCC 70 OF 2021

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property is disposed of, the substratum of the appeal will be lost and third-party interests are likely to be introduced complicating execution of appeal decision in the event the appeal succeeds. 46.The Court is therefore satisfied that the balance of convenience favours preservation of the suit property pending the determination of the intended appeal. The Court is also mindful of the general principle applicable to an injunction pending appeal, that is, where a party is exercising its undoubted right of appeal, the Court should see to it that the appeal, if successful, is not rendered nugatory. See Wilson v Church (No. 2) [1879] 12 Ch D 454. 47.Accordingly, the Court finds it appropriate to grant an injunction restraining the disposition of the suit property pending the determination of the intended appeal, for purposes of preserving the substratum. In order to balance the interests of both parties, the order shall be conditional upon the Plaintiffs lodging the intended appeal within 21 days. In fixing the period, the Court has taken into account that the proceedings are ready and that the certificate of delay dated 22 nd July 2026 certifies that the period between 17th February 2026 and 17th July 2026 was required for the preparation and delivery of certified copies of the proceedings and judgment. 48.The Court further considers that preservation of the substratum of the intended appeal requires the integrity of the register relating to the suit property to be maintained pending the determination of the appeal. The Court therefore directs the 3 rd Defendant, the Land Registrar, to preserve the integrity of all register and records relating to the suit property and to refrain from effecting any disposition inconsistent with the orders of this Court pending the determination of the intended appeal. Page | 16 ELCC 70 OF 2021

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49.With respect to the prayer for an order compelling the 1 st and 2nd Defendants to surrender their titles to the 3 rd Defendant, the Court is not satisfied that a sufficient legal basis has been established for granting such an order at this stage. The Plaintiffs have not demonstrated that preservation of the suit property cannot adequately be achieved through the orders already granted. The prayer for surrender of the titles therefore fails. 50.As regards to costs, Section 27 of the Civil Procedure Act provides that costs are at the discretion of the Court and that the general rule is that costs should follow events. The application having only partially succeeded, the Court considers it just that each party bears its own costs. 51.Accordingly, for the reasons set out above, the Court finds merit in the application dated 13th April 2026 and allows it in terms of prayers (VI) and (VIII) of the Notice of Motion dated 13th April 2026, subject to the condition that the Plaintiffs lodge the intended appeal within 21 days from the date hereof. Each party shall bear its own costs of the application. Dated, Signed and Delivered virtually via Microsoft teams at Kwale this 28 th day of September 2026. Hon. E.G Nderitu L J ELC Kwale In the presence of: Mr Gitonga for Mr Otieno for the Plaintiffs/Applicant Ms Washalla for Mr Mungai Kamau for the Defendants/Respondents Ms Halima C/A Page | 17 ELCC 70 OF 2021

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