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Court of AppealDismissedCivil Application No. E107 of 2023· [2025] KECA 1151 (KLR)

Joseph Ndegwa Mburu v Ndungu Karua

Court of Appeal of Kenya
5 June 2025
SKS. ole KantaiJLJ. LesiitALAli-Aroni
1,040 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to hear a second application for protection over the same judgment, ruling that a party gets only one chance to ask for interim relief.

What this practically means

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Executive summary

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The applicant, whose adverse possession claim over 0.2400 hectares of land title Loc.6/Gikarangu/1258 was dismissed by L. Gacheru, J. of the Environment and Land Court on 29th June 2023, filed an appeal and then a Rule 5(2)(b) application for stay, which was dismissed on 5th July 2024 on the ground that the dismissal judgment was a negative order incapable of being stayed. He returned with a second Rule 5(2)(b) application, this time seeking a temporary injunction restraining the respondent from evicting him or interfering with his possession pending the appeal. The application was unopposed; the respondent did not respond or appear despite service. The applicant relied on authorities on the standard principles for injunctive relief, arguing that his appeal was arguable and would be rendered nugatory by eviction, and that no final findings should be made at the interlocutory stage. The Court (Kantai, Lesiit and Ali-Aroni, JJA) framed a single jurisdictional question: whether it could entertain a second application following dismissal of the first. It held that the principles governing stay and injunction are the same, that the applicant should have sought the injunction within the earlier application, and that, this not being a review, the doctrine of res judicata barred the fresh application. Lacking jurisdiction, the Court dismissed the application with no orders as to costs.

Key legal issues

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01

Whether the Court has jurisdiction to entertain a second Rule 5(2)(b) application seeking a temporary injunction after a prior stay application on the same judgment was dismissed

Holding

The Court has no jurisdiction; res judicata bars the second application since the applicant should have sought the injunction in the earlier application and the considerations for stay and injunction are the same.

Reasoning

The Court identified two ways of viewing the jurisdiction question. First, a similar application (for stay) had already been heard and dismissed. Second, the principles governing stay and injunction are identical, so the relief now sought could and should have been sought in the first application. Since this was not an application for review, res judicata applied, denying the applicant a second bite at the cherry and depriving the Court of jurisdiction.

p. 3

Legal principles established

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  • Where a litigant under Rule 5(2)(b) fails to seek interim relief (such as an injunction) in a first application arising from the same judgment, a subsequent application for that relief is barred by res judicata and the Court has no jurisdiction to entertain it, because the principles governing stay and injunction are the same.

Court orders

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  1. 1.The application dated 12th July 2024 is dismissed
  2. 2.No orders as to costs
On appeal from
Environment and Land Court
ELC (OS) No. E006 of 2021
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Joseph Ndegwa Mburu v Ndungu Karua", Case Analysis (2025). Civil Application No. E107 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1151/eng@2025-06-05

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.