Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCPartially AllowedNot stated in the extract (arising from Nairobi MCELC Number 362 of 2023)

Olal v Jay Jay Holdings Limited (Environment and Land Miscellaneous Application E051 of 2025) [2025] KEELC 5407 (KLR)

Environment and Land Court
21 July 2025
2,967 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

#

What this practically means

#

Executive summary

#
The applicant, having lost a suit before the Chief Magistrate's Court in Nairobi MCELC No. 362 of 2023 (judgment delivered on 27th August 2024 by Hon. S. A Opande, PM), filed an appeal that was erroneously lodged in the High Court's Civil Division through the e-filing system; the High Court struck it out for want of jurisdiction on 27th February 2025. In the interim the respondent extracted the decree and evicted the applicant from Flat No. G7, Jay Jay Apartments, Lukysammar Estate, Nairobi. By notice of motion dated 6th March 2025 under Order 42 Rule 6 of the Civil Procedure Rules and Sections 3A, 75, 78 and 79G of the Civil Procedure Act, the applicant sought mandatory injunctions restoring him to the suit property pending appeal, a temporary injunction restraining disposal or leasing, and leave to appeal out of time. The respondent opposed, arguing inordinate delay, non-arguability of the appeal, that the property was now leased to a third party, that the court lacked jurisdiction to grant a mandatory injunction, and that no security was offered. The court applied the mandatory-injunction test in Kenya Breweries Ltd v Washington O. Okeyo, holding that execution under a decree is not an exceptional circumstance and that the applicant should have sought stay of execution; the injunctions were refused. Applying Section 79G and the Thuita Mwangi v Kenya Airways factors, the court found the delay explained by erroneous e-filing and the draft memorandum arguable, and granted leave to appeal out of time, directed compliance with Order 9 Rule 9 if need be, and ordered each party to bear its own costs.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant should be granted leave to file the memorandum of appeal out of time
  2. 2.Whether the respondent will suffer any prejudice
  3. 3.Whether the intended appeal is arguable
  4. 4.Whether a mandatory injunction should be issued

Key legal issues

#
01

Whether to grant a mandatory injunction reinstating the applicant into the suit property pending appeal

Holding

The mandatory injunction was refused because exceptional circumstances were absent; execution under a decree is not exceptional and the applicant should have sought stay of execution

Reasoning

The court applied the Kenya Breweries v Okeyo test, drawing on Halsbury's Laws and Locabail International Finance Ltd v Agroexport, that a mandatory interlocutory injunction is granted only in clear cases, in special circumstances, or where the defendant stole a march, and where the court has a high degree of assurance of its correctness at trial. Here the respondent executed a decree flowing from the trial court's judgment, so the applicant's remedy lay in stay of execution, not a mandatory injunction. The application was accordingly refused on this limb.

p. 5
02

Whether the applicant should be granted leave to file the appeal out of time under Section 79G of the Civil Procedure Act

Holding

Leave to file the appeal out of time was granted

Reasoning

Section 79G requires appeals to be filed within thirty days but permits admission out of time on good and sufficient cause. Applying the Thuita Mwangi v Kenya Airways factors (length of delay, reason for delay, chances of success, prejudice), the court accepted that the applicant had promptly filed a memorandum of appeal, albeit in the wrong court via the e-filing system, an error attributable to the party but one the court forgave as human error. The draft memorandum was held arguable and no significant prejudice was shown, so extension was warranted.

p. 6
03

Whether the intended appeal is arguable

Holding

The draft memorandum of appeal was found to be arguable, though its ultimate success could only be determined at the hearing

Reasoning

The court undertook a plain reading of the draft memorandum of appeal dated 25th September, 2024 annexed to the application. It found the grounds arguable in that they invited the court to consider issues which the applicant contended the subordinate court did not properly address. The court expressly declined to predict the appeal's outcome, holding that success or failure could only be determined upon hearing the appeal itself.

p. 6

Legal principles established

#
  • A mandatory injunction on interlocutory application will not normally be granted absent special circumstances, and requires a higher degree of assurance than a prohibitory injunction
  • Extension of time to appeal is discretionary and is guided by the length of and reason for delay, arguability of the appeal and prejudice to the respondent
  • Execution of a lawful decree pursuant to a judgment does not of itself constitute exceptional circumstances for a mandatory injunction

Court orders

#
  1. 1.The applicant is granted leave to file an appeal out of time against the judgment delivered on 27th August, 2024 in Nairobi MCELC Number 362 of 2023
  2. 2.The respondent to ensure compliance with Order 9 Rule 9 of the Civil Procedure if need be
  3. 3.Each party to bear its own costs

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Chief Magistrate's Court, Nairobi (MCELC No. 362 of 2023)
MCELC Number 362 of 2023
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules and Sections 3A, 75, 78 and 79G of the Civil Procedure Act (first appeal from subordinate court to the Environment and Land Court)

Relief refused

#

Mandatory injunction compelling the respondent to restore, reinstate and/or return the applicant into ownership, possession and occupation of Flat No. G7, Jay Jay Apartments, Lukysammar Estate, Nairobi, pending hearing and determination of the application and the intended appeal

Mandatory injunctions require exceptional circumstances; the applicant did not seek stay of execution and the execution pursuant to a decree was not exceptional

p. 5

Temporary injunction restraining the respondent from letting, leasing, charging, selling, transferring or alienating the suit property pending the intended appeal

The court found no basis for a mandatory injunction and granted only leave to file appeal out of time

p. 5

Costs

Each party to bear its own costs.

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.

The applicant is granted leave to file an appeal out of time against the judgment delivered on 27th August, 2024 in Nairobi MCELC Number 362 of 2023.
p. 6Final orders - extension of time
i. The applicant is granted leave to file an appeal out of time against the judgment delivered on 27th August, 2024 in Nairobi MCELC Number 362 of 2023. ii. The respondent to ensure compliance with Order 9 Rule 9 of the Civil Procedure if need be. iii. Each party to bear its own costs.
p. 6Disposition
For the court to grant a mandatory injunction, there ought to exist exceptional circumstances that warrant the grant of these orders.
p. 5Mandatory injunction test
It is now well settled that the decision whether or not to extend the time for appealing is essentially discretionary.
p. 5Extension of time principles
In my analysis, I find no reason to grant an order of mandatory injunction.
p. 5Refusal of mandatory injunction

Issues in the judgment

#
minor

The applicant is referred to as 'the appellant' in the body of the notice of motion despite the matter being an interlocutory application by an applicant intending to appeal; the roles are used inconsistently.

minor

The number of the present application/case before this court is not stated anywhere in the judgment; the title and neutral citation cannot be ascertained from the text.

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Olal v Jay Jay Holdings Limited (Environment and Land Miscellaneous Application E051 of 2025) [2025] KEELC 5407 (KLR)", Case Analysis (2025). Not stated in the extract (arising from Nairobi MCELC Number 362 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5407/eng@2025-07-21

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