Hassan Hussein Hassan Mitan (Suing on his own behalf and as the Administrator of the Estate of Hussein Hassan Mitan) v Isamil Maalim Alio

5. Subsequently, the Appellant’s advocate orally applied to expunge the Respondent’s further lists of documents and witnesses dated 16 October 2025. In its ruling delivered on 21 January 2026, the subordinate court dismissed that application and deemed the disputed documents and witness material properly filed. 6. The subordinate court also vacated the interim injunction. It referred to the age, nature and history of the matter and the prevailing special circumstances. Its reasoning included concerns about the Appellant’s late filing of witness material, an adjournment sought because of national examination supervision duties, and the timing of the objection to the Respondent’s documents. 7. The memorandum of appeal, dated 2 February 2026, challenges only the portion of that ruling discharging the interim injunction. The substantive land dispute remains pending before the subordinate court. The Parties’ Cases 8. When the application first came before this Court on 6 February 2026, Kibunja J found that the Appellant had not demonstrated urgency. The Court nevertheless directed the Appellant to serve the application and file evidence of service, allowed the Respondent fourteen days after service to file and serve his response, and fixed the application for inter partes hearing on 25 February 2026. No injunction or stay was granted on that occasion. 9. On 25 February 2026, after hearing the parties, Kibunja J granted a temporary injunction restraining the Respondent, his agents, servants, employees, and persons claiming through him from entering upon, trespassing onto, mining, excavating, blasting, extracting stones, conducting quarry activities, or otherwise physically degrading Jirma Farm, Farm No. 11, in Fikow Location, Mandera East. The injunction was expressly granted pending the hearing and determination of the application. 10. By the same order, the Court stayed proceedings in Mandera CMELC No. E009 of 2024 pending hearing and determination of the appeal. The Appellant was granted leave to file and serve a supplementary affidavit limited to new issues arising from the replying affidavit. The Court further directed that the application be canvassed through written submissions exchanged within twenty-one days, beginning with the Appellant, and fixed a further mention for 29 April 2026. 11. The Respondent opposes the application through his replying affidavit sworn on 12 February 2026. He maintains that, after securing interim protection, the Appellant adopted a pattern of conduct intended to postpone the hearing while continuing to enjoy the injunction. 12. In particular, the Respondent relies on the adjournment of 29 October 2025, the objection to his documents after the matter had been allocated hearing time on 3 December 2025, and the application dated 26 January 2026 seeking joinder of additional parties. He considers these steps an abuse of the court process. 13. In his submissions, the Respondent relies on Reef Building Systems Limited v Nairobi City Council Nairobi HCCC No. 1357 of 2001 (unreported), Mbogo v Shah [1968] EA 93 and Apungu Arthur Kibira v Independent Electoral and Page 2 of 8

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Boundaries Commission & 3 others [2019] eKLR. He argues that the trial court possessed discretion to withdraw equitable protection and that no basis for interfering with that discretion has been established. He further invokes Nabro Properties Limited v Sky Structures Limited & 2 others [2002] eKLR for the principle that a party should not benefit from his own wrong. 14. Both parties address the principles in Giella v Cassman Brown & Co. Limited [1973] EA 358 and Mrao Limited v First American Bank of Kenya Limited & 2 others [2003] KLR 125. The Appellant emphasizes preservation against irreversible injury, while the Respondent maintains that the Appellant has established neither a sufficient case nor irreparable harm and that the balance of convenience favors refusal of relief. Issues for Determination 15. The issues are: i) Whether a temporary injunction should issue pending determination of the appeal. ii) Whether proceedings in Mandera CMELC No. E009 of 2024 should be stayed. iii)What conditions and consequential directions should accompany the relief. Applicable Legal Principles 16. Order 42 Rule 6(6) of the Civil Procedure Rules empowers this Court, when exercising appellate jurisdiction, to grant a temporary injunction on just terms, provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with. The Environment and Land Court applied this jurisdiction in Kimani v Munuhe & 3 others [2023] KEELC 19165 (KLR). 17. Although the Appellant also cites rule 5(2)(b) of the Court of Appeal Rules, that provision governs applications before the Court of Appeal. The applicable foundation for injunctive relief in this appeal is Order 42 rule 6(6). The additional citation does not defeat an application for relief which this Court otherwise possesses jurisdiction to consider. 18. In Patricia Njeri & 3 others v National Museum of Kenya [2004] eKLR, the Court explained that an injunction pending appeal is discretionary. The appeal must not be frivolous; refusal of protection must present a risk of rendering the appeal nugatory; and the relief should not inflict greater hardship than it avoids. The Court should also be guided by the principles in Giella v Cassman Brown. These principles were considered in Kimani v Munuhe. 19. Where the impugned decision involves discretion, the principles in Mbogo v Shah require restraint in appellate interference. The question is whether there was a misdirection, consideration of irrelevant matters, omission of relevant matters or a plainly wrong exercise of discretion occasioning injustice. At this interlocutory stage, however, the Court considers whether the challenge is bona fide and deserves adjudication; it does not conclusively determine whether the appeal succeeds. Page 3 of 8

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20. The equitable character of an injunction makes the beneficiary’s conduct relevant to its continuation. In Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR, the Court of Appeal explained that Order 40 Rule 6 addresses the mischief of a beneficiary employing delaying tactics while enjoying temporary protection. It anticipates that “where a suit in respect of which an interlocutory injunction has been granted is not determined within a period of twelve months from the date of the grant, the injunction shall lapse unless for any sufficient reason the court orders otherwise.” 21. A stay of proceedings requires separate justification. In Kenya Wildlife Service v James Mutembei [2019] eKLR, the Court emphasized that such a stay seriously interferes with a litigant’s right to conduct proceedings and must be granted sparingly. In Global Tours & Travels Limited, Nairobi Winding Up Cause No. 43 of 2000, the governing consideration was whether a stay serves the interests of justice, taking into account expedition, the merits of the proposed challenge, and the efficient use of judicial time. 22. Finally, an interlocutory appeal should not resolve issues reserved for trial. The Court of Appeal reiterated that restraint in Rodgers Chiriba Nyambu & another v George Mademu Munga & 3 others [2018] eKLR. Accordingly, the present ruling makes no determination of ownership, the validity of the allotment letter or the ultimate entitlement to possession. Analysis 23. The application calls for the exercise of this Court’s appellate jurisdiction to preserve the subject matter pending determination of the appeal. Order 42 Rule 6(6) of the Civil Procedure Rules empowers the Court to grant a temporary injunction on such terms as it considers just, provided the procedure for instituting an appeal has been complied with. The memorandum of appeal was filed on 6 February 2026 against the ruling delivered on 21 January 2026. The appeal was therefore instituted within the prescribed period, and this Court has jurisdiction to consider the relief sought. 24. The application also cites rule 5(2)(b) of the Court of Appeal Rules. That provision governs proceedings before the Court of Appeal and does not supply the jurisdiction exercised here. Nevertheless, the additional citation does not defeat the application, whose substantive foundation is Order 42 rule 6(6). 25. In Patricia Njeri & 3 others v National Museum of Kenya [2004] eKLR, the Court explained that an injunction pending appeal is discretionary; the appeal should not be frivolous; refusal of protection should present a risk of rendering the appeal nugatory; and the injunction should not inflict greater hardship than it would avoid. The Court should also be guided by the principles in Giella v Cassman Brown & Co. Limited [1973] EA 358. The Environment and Land Court applied those considerations in Kimani v Munuhe & 3 others [2023] KEELC 19165 (KLR). 26. The appeal is confined to the discharge of the interim injunction. It does not invite this Court, at this stage, to determine ownership of Jirma Farm, the validity of the Respondent’s allotment letter or the parties’ ultimate entitlement to possession. As emphasized in Rodgers Chiriba Nyambu & another v George Mademu Munga & 3 others [2018] eKLR, a court considering an interlocutory appeal should refrain Page 4 of 8

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from expressing concluded views on questions awaiting trial. The parties’ competing proprietary claims therefore remain for determination before the subordinate court. 27. The Respondent submits that the subordinate court properly withdrew equitable protection because the Appellant had delayed the proceedings. He relies on Mbogo v Shah [1968] EA 93 and Apungu Arthur Kibira v Independent Electoral and Boundaries Commission & 3 others [2019] eKLR concerning restraint in appellate interference with discretion. That submission identifies an important distinction: an appeal against a discretionary decision does not succeed merely because the appellate court might have reached a different conclusion. The Appellant must demonstrate a relevant misdirection, an error of principle or a plainly wrong exercise of discretion occasioning injustice. 28. Those principles will govern determination of the substantive appeal. On the present application, the Court must assess whether the challenge raises a bona fide question deserving adjudication, without prematurely deciding that the subordinate court wrongly exercised its discretion. The Appellant questions the discharge of the injunction in a ruling concerned with expunging documents and witness material, the opportunity afforded to address discharge, and the consideration given to the threatened physical degradation of the property. These are identifiable questions concerning both procedure and the exercise of discretion. I am satisfied that the appeal is not frivolous. 29. The allegation concerning the opportunity to be heard is particularly material. In Ethics and Anti-Corruption Commission v Judith Marilyn Okungu & another [2017] eKLR, the Court of Appeal faulted a prejudicial order made on the court’s own motion without inviting representations from the parties. Although that decision concerned a stay of proceedings, its reasoning underscores the importance of hearing parties before making an adverse order on an issue raised by the court itself. Whether the proceedings here afforded a sufficient opportunity to address discharge is a question for examination on the complete appellate record. 30. I do not, however, treat the absence of a formal application as conclusively establishing that the discharge was unlawful. The nature and duration of the interim order, the stage of the proceedings and the circumstances in which its continuation arose must also be considered. The arguability of this appeal rests on the combined procedural and discretionary questions raised, rather than on a predetermined conclusion that the subordinate court lacked power to act. 31. The Respondent’s complaint about delay cannot be overlooked. An injunction is an equitable remedy, and its beneficiary remains obliged to prosecute the proceedings diligently. In Nguruman Limited v Jan Bonde Nielsen & 2 others [2014] eKLR, the Court of Appeal explained that Order 40 Rule 6 addresses the mischief of a party obtaining temporary protection and then employing tactics to delay disposal of the suit. Although that rule specifically concerns the lifespan of an interlocutory injunction, its rationale is relevant to the Respondent’s objection: interim protection should not become an advantage maintained through obstruction of adjudication. 32. The subordinate court identified the Appellant’s late filing of witness material, the adjournment sought on account of examination supervision duties, and the timing of the objection to the Respondent’s documents. The Appellant has offered explanations Page 5 of 8

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for those steps and for the subsequent joinder application. Their adequacy, and the weight properly attributable to that conduct, remain matters for the appeal. At this stage, I neither disregard the trial court’s concerns nor conclusively absolve the Appellant of responsibility for delay. 33. The principle invoked by the Respondent in Nabro Properties Limited v Sky Structures Limited & 2 others [2002] eKLR that a party should not benefit from his own wrong reinforces the need for conditions governing further protection. It does not require the Court to assume that every disputed procedural step constituted abuse or to leave the property exposed to irreversible alteration before the appeal is heard. The appropriate response must address both expedition and preservation. 34. Turning to the threatened injury, the Appellant’s affidavits describe resumed excavation, blasting and stone extraction following discharge of the lower court’s injunction. The supporting affidavit refers to photographs exhibited in support of that allegation. The Respondent’s answer principally challenges the Appellant’s conduct and defends the discharge; it does not sufficiently answer the particular risk of physical depletion if the protective restraint is lifted. 35. The subsequent orders of this Court must also be accounted for. On 6 February 2026, Kibunja J found that urgency had not been demonstrated and directed service and an inter partes hearing. That order did not determine the substantive merits. On 25 February 2026, after hearing the parties, the Court granted an injunction pending determination of this application and stayed the subordinate court proceedings pending determination of the appeal. The present inquiry concerns continuation of protection after disposal of the application. 36. Under Giella v Cassman Brown, the Court must consider whether the threatened injury can adequately be compensated by damages. Here, the apprehended harm concerns removal of soil and stone, creation of pits and permanent alteration of the property’s physical character. The fact that the extracted material may have monetary value does not necessarily mean damages would adequately restore the depleted land. I am therefore satisfied, for purposes of temporary protection, that the evidence demonstrates a real risk of injury which would not be adequately remedied by an eventual monetary award. 37. That risk is directly connected to the appeal. The relief sought on appeal is restoration of protection against quarrying and related degradation. If those activities resume and materially deplete the property before determination, a successful appeal may restore an injunction only after the resource it was intended to preserve has been removed. The Appellant has therefore demonstrated the risk of rendering the appeal nugatory, as contemplated in Patricia Njeri & 3 others v National Museum of Kenya. 38. I have considered the corresponding hardship to the Respondent. Restraint may interrupt activities he considers lawful and prolong restrictions already experienced. Nevertheless, a limited suspension preserves the disputed resource for the party who ultimately establishes entitlement. Continued extraction could permanently diminish it. Applying the comparative hardship principle in Patricia Njeri, I find that a strictly time-bound injunction would avoid greater injustice than it would occasion. Page 6 of 8

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39. The injunction should be tailored to that purpose. Restraining entry for mining, excavation, blasting, stone extraction and related degrading activities addresses the demonstrated risk without determining possession. It does not authorize eviction or permit the Appellant to obtain possession through self-help. 40. The stay of proceedings requires separate consideration. In Kenya Wildlife Service v James Mutembei [2019] eKLR, the Court emphasized that a stay seriously interferes with a litigant’s right to conduct proceedings and should be granted sparingly. Under Global Tours & Travels Limited, Nairobi Winding Up Cause No. 43 of 2000, the controlling question is whether the stay serves the interests of justice, taking into account expedition, the proposed challenge, and the efficient use of judicial time. An arguable interlocutory appeal does not, by itself, justify suspending the substantive suit. 41. Indeed, Kimani v Munuhe demonstrates that protection pending appeal can coexist with continued proceedings before the subordinate court. The Court must therefore identify a justification for the stay beyond the need to preserve the land. In this case, the appeal concerns withdrawal of protection arising from the procedural conduct of the ongoing trial, and determination of the substantive suit before the limited appeal could overtake the interlocutory controversy. A short continuation of the existing stay will allow that question to be resolved before the trial proceeds further. 42. The Respondent’s interest in prompt determination weighs strongly against an indefinite interruption. I therefore find continuation of the stay justified only within a defined period supported by priority appellate directions. Requiring completion of the filing requirements and prosecution of the appeal to disposal within sixty days from today (8 October 2026) reconciles the need for appellate consideration with the obligation to prevent further delay. 43. The memorandum of appeal has already been filed. The filing condition consequently concerns completion and service of the record of appeal and compliance with directions necessary to place the appeal before the Court for determination. The parties must act promptly, and the Court must facilitate disposal by retrieving the subordinate court file and listing the appeal on priority. 44. Accordingly, the injunction granted on 25 February 2026 pending determination of this application shall be replaced by an injunction pending determination of the appeal. The existing stay shall continue subject to the same timetable. Both orders shall be governed by the sixty-day limit ending on 7 December 2026 and the default provisions specified in the disposition. 45. This conclusion preserves the disputed property while ensuring that protection remains tied to diligent prosecution. It does not determine ownership, set aside the subordinate court’s discharge order or finally reinstate its injunction. Those questions remain for determination within the proper scope of the appeal. Disposition 46. The Notice of Motion dated 6 February 2026 is therefore allowed on the following terms: Page 7 of 8

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i) Prayer 3 on the face of the motion is granted. ii) Grant of prayer 3 and stay of proceedings in Mandera CMELC No. E009 of 2024 granted on 25 February 2026 shall continue, subject to the conditions below. iii)The injunction and continued stay are conditional upon completion of the filing requirements and prosecuting the appeal to disposal within sixty (60) days from 8 October 2026, being on or before 7 December 2026. iv)The Appellant shall file and serve a complete record of appeal within fourteen days from 8 October 2026. v) The Appellant shall file and serve submissions on the substantive appeal within seven days after service of the record. The Respondent shall file and serve his submissions within seven days thereafter. vi)The Deputy Registrar shall promptly call for the subordinate court file and place the appeal before the Court for directions on 9th November 2026, for priority hearing and determination within the prescribed sixty days. vii) If the Appellant fails to file and serve the record within the directed period, the injunction and stay shall automatically lapse, unless the Court orders otherwise before that period expires. Both orders shall cease upon determination of the appeal or expiry of the sixty-day period on 7 December 2026, whichever occurs first, unless a further express order is made. Upon lapse of the stay, the subordinate court proceedings may resume. viii) These orders do not authorize eviction, transfer of possession or self-help by either party. ix) Costs of the application shall abide the outcome of the appeal. 47. Orders accordingly. DATED, SIGNED AND DELIVERED IN GARISSA THIS 8 TH DAY OF OCTOBER 2026. DR. OMONDI R. OWINO, FCIArb ENVIRONMENT AND LAND COURT JUDGE DELIVERED VIRTUALLY ON THE TEAMS PLATFORM IN THE PRESENCE OF: Mr. Mohammed Dabar (Court Assistant) Page 8 of 8

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