CKK Estates (1973) Ltd v General & 4 others (Civil Application E162 of 2025) [2025] KECA 1741 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you can get an injunction pending appeal even after a court strikes out your case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court may grant an injunction pending an intended appeal against an interlocutory ruling striking out a petition
- 2.Whether the intended appeal is arguable
- 3.Whether the intended appeal would be rendered nugatory if the interim orders are denied
Key legal issues
#Whether the Court can grant injunction under Rule 5(2)(b) where the intended appeal is against a striking-out (negative) order
Yes; the bar applies to stay of a negative order, not to injunction.
The Court noted rule 5(2)(b) empowers it to order a stay, an injunction or a stay of further proceedings, and draws no distinction between final and interlocutory orders. The authorities holding that a negative order cannot be stayed address stay only; where an injunction is sought, there is no bar even if the order appealed against is a striking-out. The 4th respondent's objection founded on the interlocutory and negative character of the order therefore failed.
Whether the intended appeal was arguable
Yes; a single bona fide arguable ground suffices.
The applicant contended that the learned Judge erred in striking out the petition when a judge of the same court, Kemei J, had on 9th November 2023 found a prima facie case and granted an injunction. The Court held it arguable whether it was open to the Judge to strike out the petition in those circumstances, and one such ground sufficed for the first twin principle.
Whether the appeal would be rendered nugatory absent the interim orders
Yes; given the risk of disposal, alienation or encumbrance of the suit property and the lapse of the trial court's injunctive relief.
The applicant had been in possession for 52 years; the 4th respondent might dispose of, alienate or encumber the property causing irreparable loss; and the injunctive relief granted by the trial court lapsed upon the striking-out. The respondents gave no evidence rebutting this apprehension, and the existing status quo orders in the Thika ELC suits could not be assumed to remain in place indefinitely.
Legal principles established
#- Rule 5(2)(b) makes no distinction between stay or injunction of a final and an interlocutory order; injunction may issue pending an intended appeal even where the order sought to be appealed is a negative order such as striking out.
- While a negative order is incapable of being stayed, there is no bar to seeking an injunction under Rule 5(2)(b) where a negative order is the subject of the intended appeal.
- In matters of judicial discretion, previous decisions are not binding so as to dictate a particular outcome, since discretion involves a latitude of individual choice according to particular circumstances.
Court orders
#- 1.The 2nd - 5th respondents restrained from interfering with the applicants' enjoyment of LR. NO. 134/8 and LR. No 245/4 pending lodging, hearing and determination of the intended appeal against the ruling of Mogeni J delivered on 27th February 2025
- 2.The 4th and 5th respondents restrained by themselves, their servants and/or agents from entering LR. NO. 134/8 and LR. No 245/4 pending hearing and determination of this appeal
- 3.The 4th and 5th respondents restrained from evicting the applicant from the suit premises pending lodging, hearing and determination of the intended appeal
- 4.Costs to abide the outcome of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court, Thika
- Thika ELC Petition No. 16 of 2022
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules; overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
That the 2nd - 5th respondents are restrained from interfering with the applicants' enjoyment of the suit properties LR. NO. 134/8 and LR. No 245/4 pending lodging, hearing, and determination of the applicant's intended appeal against the ruling of Hon. Justice Mogeni delivered on 27th February 2025.
That the costs abide by the outcome of the intended appeal.
This Court has similarly granted conservatory orders and maintained status quo based on the same rule. That rule makes no distinction between stay or injunction of a final and an interlocutory order.
judicial discretion, however wide, must be prudently exercised based on fixed principles and not on private opinions, sentiments and sympathy or benevolence but deservedly and not arbitrarily, whimsically or capriciously
in considering an application brought under Rule 5 (2) (b) the Court must not make definitive or final findings of either fact or law at that stage as doing so may embarrass the ultimate hearing of the main appeal.
Issues in the judgment
#The judgment does not state the name of the applicant company or the Court of Appeal case number of the application; the case is identified only by reference to the underlying Thika ELC Petition No. 16 of 2022.
The name of the Equity Bank authority is printed inconsistently as 'West Link NBO' in the text.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "CKK Estates (1973) Ltd v General & 4 others (Civil Application E162 of 2025) [2025] KECA 1741 (KLR)", Case Analysis (2025). Not stated in the judgment (Notice of Motion dated 12th March 2025 arising from Thika ELC Petition No. 16 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1741/eng@2025-10-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.