Clementine Anyango Suka & 3 Others v Linus Otieno Aguyo

TOM BAKELO SUKA ……………………………..……….. 2ND DEFENDANT NELLINGTON MASOREE SUKA …………………..….. 3RD DEFENDANT CAVIN GENO SUKA ……………………………..………. 4TH DEFENDANT RULING 1. This ruling is in respect of the Notice of Motion application dated 16th March, 2026, brought by the Appellant pursuant to the provisions of Order 42 Rules 6(1)(2) and (6) and Order 51 Rules 1 and 3 of the Civil Procedure (Amended) Rules 2020, section 1A, 1B, and 3A of the Civil Procedure Act, Cap 21 Laws of Kenya. 2. The application seeks; a. An order of temporary injunction restraining the Respondent, whether by himself, his agents, servants, or any person claiming through him howsoever from sub-dividing, selling, disposing, removing, evicting, transferring or by any other means whatsoever disposing of or otherwise dealing with the suit property known as SIAYA/NYANDIWA/913 or in any other way interfering with the Appellant/Applicant’s interest ELC LA E093/2024 RULING 2

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and privileges incidental thereto pending the hearing and determination of the applicant’s appeal in KISUMU CM ELC NO.83 OF 2018. b. An order that, pending the hearing and determination of the appeal lodged by the appellant herein, there be an order for stay of execution and/or enforcement of the judgment and decree of the Honourable Court delivered on 28th October, 2024. c. That the costs of this application be provided for. 3. The application was supported by the averments in the Supporting Affidavit of TOM SUKA sworn on 17th March, 2026 and the Supplementary Affidavit. 4. The application was opposed vide the Respondent’s Replying Affidavit sworn on 5th May, 2026. 5. The first relief sought is an order of temporary injunction pending the hearing and determination of the appeal herein. Order 42 Rule 6(6) of the Civil Procedure Rules gives the court, in the exercise of its appellate jurisdiction, power to grant a temporary injunction on such terms as it thinks just, provided the procedure for instituting an appeal from a subordinate ELC LA E093/2024 RULING 3

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court or tribunal has been complied with. In the present case, the procedure for filing an appeal had been complied with, namely that the Memorandum of Appeal dated 27th November 2024 has been lodged herein. 6. The grounds for grant of an order of temporary injunction are provided for in Order 40 Rule 1 of the Civil Procedure Rules, namely that where it is proved by affidavit or otherwise that any property in dispute in a suit is in danger of being wasted, damaged, or alienated by any party to the suit or wrongfully sold in execution of a decree, the court may, by order, grant a temporary injunction to restrain such act. These grounds were amplified in the case of Giella vs Cassman Brown Co. Ltd (1973) 358, that the Applicant must establish a prima facie case with a probability of success; secondly, that an interlocutory injunction will not normally be granted unless the Applicant would suffer irreparable injury which would not adequately be compensated in damages and that when the court is in doubt, it will decide the application on a balance of convenience. 7. In the present case, the Applicant’s case is that the trial court delivered a judgment in favour of the Respondent in Kisumu ELC LA E093/2024 RULING 4

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CMC ELC NO.83 OF 2018 issuing orders of eviction against the Appellant on 27th October, 2024. That it is only the 1st Appellant who resides on the suit land. That the Respondent has initiated execution proceedings and, if the same are not stayed, the 1st Appellant faces imminent risk of being forcibly evicted from her only home before the appeal is heard and disposed of. 8. Having considered the application and the Reply thereto, I find that what the Applicant seeks is to preserve the suit land pending the hearing and disposal of the appeal. The order of interlocutory injunction is intended to restrain the disposal of the suit land pending hearing of the appeal, while the order of stay of execution sought is intended to prevent execution of the judgment of the trial court pending determination of the appeal. 9. I have considered the written submissions filed by the parties. I find that the application has merit and hereby allow it in terms of prayers 4 and 5 thereof. Costs of the application shall abide the appeal. ELC LA E093/2024 RULING 5

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10. To expedite the hearing and determination of the appeal, the Appellant is hereby directed to file and serve the Record of Appeal within 21 days hereof. Orders accordingly. Ruling dated and signed at Kisumu and delivered this 1 st day of October, 2026, virtually through Microsoft Teams Online Application. E. ASATI, JUDGE. In the presence of: Atika - Court Assistant. N/A for the Appellant/Applicant Respondent present in person. ELC LA E093/2024 RULING 6

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