Maalim v Musa (Sued as the Legal Representative in the Estate of Fatuma Ahmed) & 2 others (Environment and Land Case 001 of 2022) [2025] KEELC 6137 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether leave to appeal is required for an appeal against a ruling on a temporary injunction
No leave is required; an automatic right of appeal exists under Order 43 Rule 1(1)(u) read with Section 75 of the Civil Procedure Act
Order 43 Rule 1(1)(u) provides that an appeal shall lie as of right from orders under Order 40 rules 1, 2, 3, 7 and 11 concerning temporary injunctions. Section 75(1)(h) of the Civil Procedure Act confirms that appeals lie from orders made under rules expressly allowing appeal. The ruling of 3rd October 2024 dealt with a temporary injunction, so the appeal lies as of right and the prayer for leave was unnecessary.
Whether the court should grant an injunction pending appeal
The prayer is refused as res judicata; the same injunction issue was already determined by Mbugua J on 3rd October 2024 and this court cannot sit on appeal over that decision
The plaintiff had already sought injunctive relief over the same land in his application dated 1st February 2024, which was dismissed in the Ruling of 3rd October 2024. Granting an injunction pending appeal would effectively reverse that decision on appeal from a court of concurrent jurisdiction. The court relied on John Florence Maritime Services on res judicata and Charterhouse Bank on the test for injunctions pending appeal.
Legal principles established
#- The purpose of an injunction pending appeal is to preserve the status quo and prevent a successful appeal from being rendered nugatory
- An appeal lies as of right from orders on temporary injunctions under Order 43 Rule 1(1)(u), so no leave is required
Court orders
#- 1.The Notice of Motion application dated 9th October 2024 is dismissed
- 2.Costs of the application to the 1st and 3rd Defendants
- On appeal from
- Environment and Land Court (Nairobi)
- Application dated 1st February 2024, Ruling of 3rd October 2024 by Hon. Lady Justice L. Mbugua
- Jurisdiction invoked
- Order 43 Rule 1(1)(u) of the Civil Procedure Rules and Section 75 of the Civil Procedure Act (injunction pending appeal from a ruling on temporary injunctions)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Maalim v Musa (Sued as the Legal Representative in the Estate of Fatuma Ahmed) & 2 others (Environment and Land Case 001 of 2022) [2025] KEELC 6137 (KLR)", Case Analysis (2025). Not stated in the excerpt (Notice of Motion dated 9th October 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6137/eng@2025-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.