Mbaya v Kadima & another (Enviromental and Land Originating Summons 113 of 2019) [2025] KEELC 7454 (KLR)
The bottom line
#Once a Kenyan court has decided your case, it cannot grant an injunction protecting you while you appeal — only a stay of execution.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant deserves orders of inhibition and temporary injunction pending hearing and determination of his intended appeal to the Court of Appeal
Key legal issues
#Whether the ELC has jurisdiction to grant inhibition and temporary injunction pending an appeal to the Court of Appeal
It does not; the only available remedy after judgment is stay of execution pending appeal
The court held that injunction powers under Order 40 Rule 1 apply in original jurisdiction before the suit is heard, and Order 42 Rule 6(7) permits appellate injunctions only before an appeal from a subordinate court is heard. Once the court has determined rights of parties on merit, it cannot revisit prima facie case questions; that is for the Court of Appeal. Stay pending appeal and temporary injunction are distinct orders, and no provision empowers this court to grant the latter post-judgment.
Legal principles established
#- After a court makes a merit determination, it has no power to grant an injunction or inhibition pending determination of an appeal to the Court of Appeal; its only intervention is stay of execution pending appeal
- An inhibition is an order in the nature of an injunction prohibiting registration of dealings on a title
Court orders
#- 1.The application dated 1st October 2024 dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment and Land Court
- Not stated
- Jurisdiction invoked
- Sections 68 Land Registration Act; Order 40 Rule 1 and Order 42 Rule 6(7) Civil Procedure Rules - the court found it lacked jurisdiction to grant injunction pending appeal to the Court of Appeal
Relief refused
#Inhibitory and temporary injunctive orders restraining the 1st respondent from dealing with the suit property pending the hearing and determination of the intended appeal
The court, having substantively determined the suit (dismissing the applicant's adverse possession claim on 19th September 2024), has no jurisdiction to grant an injunction pending an appeal to the Court of Appeal
Costs
The application dated 1st October 2024 dismissed with costs (costs to the respondents).
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.
There is no provision granting power to this court to grant an injunction pending hearing of an appeal to the Court of Appeal.
Stay pending appeal and temporary injunction pending appeal are two difierent orders.
Therefore, I hereby dismiss the application dated 1st October 2024 with costs.
Issues in the judgment
#The judgment records the prior judgment as delivered on 19th September 2024 while the present ruling is dated 27th October 2025; the applicant's submissions were dated February 2025, indicating a prolonged interval not explained in the judgment
The judgment is internally inconsistent about its own capacity: it recites principles for grant of temporary injunction (Giella) yet holds it lacks jurisdiction to apply them in this posture
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbaya v Kadima & another (Enviromental and Land Originating Summons 113 of 2019) [2025] KEELC 7454 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7454/eng@2025-10-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.