Mwaura v Joreth Ltd & 2 others
The bottom line
#Kenya's Court of Appeal refused to stop an eviction pending appeal because the landowner was not actually in possession of the property.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether Simplepay Capital Limited should be enjoined as an interested/affected party to the appeal
- 2.Whether an injunction should issue restraining the respondents and the intended interested party from evicting or dispossessing the applicant of the suit property pending the hearing and determination of the appeal
- 3.Whether the applicant demonstrated an arguable appeal
- 4.Whether the appeal, if successful, would be rendered nugatory absent the injunction
Key legal issues
#Arguability of the intended appeal
The Court held the applicant had an arguable appeal, noting the grounds touch on interpretation of the law the ELC applied to the facts.
The draft memorandum raised eight grounds, including that the ELC erred in failing to find occupation since 1995. Although the 1st respondent disputed substance, the Court was prepared to hold the grounds raised questions of law deserving ventilation before it.
Nugatory aspect
The applicant failed to establish the appeal would be rendered nugatory without the injunction because he was not in possession and had not established developments worth preserving.
The applicant was not in possession of the suit property; affidavit evidence showed the 2nd and 3rd respondents were in possession. An injunction in such circumstances would be in vain, so the second limb of the Rule 5(2)(b) test failed.
Joinder of Simplepay Capital Limited as interested party
The application to enjoin Simplepay Capital Limited was refused for lack of sufficient basis.
The 1st respondent denied knowledge of the entity; no response or submissions were filed by the proposed interested party despite service. The Court found the applicant had not established sufficient basis and dismissed the application.
Legal principles established
#- The twin principles for interim relief under Rule 5(2)(b) - an arguable appeal and the nugatory aspect - apply equally to applications for injunction pending appeal as to stay applications.
- An arguable appeal need not be one that will succeed, only one deserving of the court's consideration; but the applicant must also show the appeal will be rendered nugatory if relief is denied.
- A court cannot issue an injunction to preserve possession or developments the applicant has not established he holds or undertook.
Court orders
#- 1.The application is dismissed with costs to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court of Kenya at Nairobi
- ELC No. 189 of 2009 (O.S.)
- Jurisdiction invoked
- Rules 5(2)(b), 47 and 79 of the Court of Appeal Rules
Relief refused
#Joinder of Simplepay Capital Limited as interested/affected party to the appeal
Applicant failed to establish sufficient basis for the joinder
Injunction restraining eviction/dispossession pending appeal
Applicant not in possession and failed to establish the appeal would be rendered nugatory
Costs
The application is dismissed with costs to the 1st respondent.
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.
Rule 5(2)(b) of the Court of Appeal Rules grants this Court jurisdiction to grant interim relief to an applicant and preserve the subject matter of the appeal pending the hearing and determination of the appeal.
An arguable appeal is not necessary one that will succeed, but simply one that is deserving of the court's consideration.
The Court cannot issue an injunction in such circumstances. It will be in vain.
Accordingly, the application is hereby dismissed with costs to the 1st respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwaura v Joreth Ltd & 2 others", Case Analysis (2026). Civil Appeal (Application) E510 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1910/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.