Magiri v Magiri & another (Environment and Land Appeal E008 of 2025) [2025] KEELC 7591 (KLR)
The bottom line
#The Environment and Land Court at Meru refused to stop an eviction pending appeal because the applicant used the wrong legal rule and showed no proof of ownership or occupation.
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 application meets the criteria for granting an interlocutory injunction by a first appellate court under Order 42 rule 6(6) of the Civil Procedure Rules
Key legal issues
#Correct jurisdictional framework for injunction pending appeal
Order 42 rule 6(6) CPR governs; reliance on Order 40 and Court of Appeal Rules was misplaced
The application was brought in a first appellate court, so Order 40 rules 1 and 2 did not apply; nor does the court exercise jurisdiction under rule 5(2)(b) of the Court of Appeal Rules. Order 42 rule 6(6) empowers the High Court in its appellate jurisdiction to grant a temporary injunction where the procedure for instituting the appeal has been complied with.
Whether the applicant demonstrated an arguable appeal
She did not; nothing in the motion, affidavit or submissions demonstrated the trust she alleged or the trial court's error
The appellant claimed one acre held in trust, but offered nothing to demonstrate the existence of the trust or that the trial court erred in rejecting it. The respondents, by contrast, showed the land was bought by their father, who allocated the applicant two other parcels she occupies.
Giella v Cassman Brown requirements and balance of convenience
Not satisfied; the applicant adduced no evidence of occupation and convenience favoured the registered proprietors in possession with permanent developments
Despite contest of her alleged occupation, the applicant brought no evidence of occupying one acre within the suit land. The balance of convenience does not favour uprooting registered proprietors who tendered evidence of ownership, permanent developments and possession.
Legal principles established
#- A first appellate court's power to grant a temporary injunction is exercised under Order 42 rule 6(6) CPR, not Order 40 rules 1 and 2
- The criteria for injunctions pending appeal: discretionary and equitable; no frivolous appeals; hardship; nugatory appeal; Giella principles; no definitive findings on merits
Court orders
#- 1.The application dated 14/5/2025 is rejected and dismissed for lack of merit
- 2.The applicant shall bear costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Senior Principal Magistrate's Court at Nkubu
- Jurisdiction invoked
- Order 42 rule 6(6) of the Civil Procedure Rules (appellate jurisdiction of the High Court)
Relief refused
#Interlocutory injunction restraining respondents from evicting the appellant from land parcel Abogeta/U-Kithangari/1799 pending appeal
Applicant failed to demonstrate an arguable appeal, failed the Giella v Cassman Brown test, and failed to prove occupation; balance of convenience favoured the registered proprietors in possession
Costs
The applicant shall bear costs of the application (per Section 27 of the Civil Procedure 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.
Notwithstanding anything contained in subrule (1) of this rule, the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.
Consequently, the application dated 14/5/2025 is rejected and dismissed for lack of merit.
In tandem with the general principle in Section 27 of the Civil Procedure Act, the applicant shall bear costs of the application.
Issues in the judgment
#Names of the appellant and the second respondent are not stated anywhere in the judgment; parties are referred to only by role and by one named respondent
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Magiri v Magiri & another (Environment and Land Appeal E008 of 2025) [2025] KEELC 7591 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7591/eng@2025-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.