Kihara v Wanjema (Administratix of the Estate of Samuel Wanjema Kanganya) (Environment and Land Appeal E019 of 2025) [2025] KEELC 7766 (KLR)
The bottom line
#The High Court allowed a lawyer change but refused a landowner's bid for stay, injunction, and extra time to appeal because no appeal had actually been filed.
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 is entitled to an order for change of Advocates.
- 2.Whether the application for injunction is incompetent under Order 42 of the Rules.
- 3.Whether the Applicant has made out a case for extension of time to file an Appeal out of time.
- 4.Whether the Applicant has made out a case for the grant of an injunction.
- 5.Who shall bear the costs of the application?
Key legal issues
#Change of advocates after judgment
Leave granted where the application was served on the outgoing advocates and unopposed
Order 9 Rule 9 requires a court order or consent for change of advocate after judgment. The application was served on Messrs King'angi & Mutahi Advocate LLP, who filed no response. The court therefore granted leave for Faith RW & Co. Advocates to come on record.
Competency of injunction/stay pending appeal without a filed appeal
Incompetent - the appellate jurisdiction under Order 42 Rule 6(6) presupposes compliance with the procedure for instituting an appeal
Order 42 Rule 6(6) permits a temporary injunction pending appeal only where the procedure for instituting the appeal has been complied with, which requires a Memorandum of Appeal under Order 42 Rule 1. The applicant had filed no Memorandum of Appeal and indeed sought leave to file the appeal out of time, so there was no appeal before the court.
Extension of time to appeal out of time
Refused - prolonged, unexplained delay of about four months and prejudice to the respondent
Applying Mwangi v Kenya Airways Ltd, the court weighed the length of the delay (about four months), the absence of any honest and reasonable explanation (the assertion that the advocate was awaiting proceedings was unpersuasive and unsupported by affidavit), and the prejudice to the respondent given multiple related suits raising the same issues, potentially res judicata.
Legal principles established
#- The High Court's power under Order 42 Rule 6(6) to grant a temporary injunction pending appeal is appellate in nature and cannot be exercised where no appeal has been validly instituted.
- Extension of time is discretionary and turns on length of delay, reason for delay, chances of the appeal succeeding and prejudice to the respondent.
- Costs follow the event unless the court directs otherwise for good reason.
Court orders
#- 1.Leave is granted to have the firm of FAITH RW & Co. Advocates to come on record to represent the Appellant after Judgment.
- 2.The rest of the orders sought in the Notice of Motion dated 6/03/2025 are declined.
- 3.Costs of the application to the Respondent.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Githunguri Magistrates' Court (Environment and Land)
- ELC No. 25 of 2019 - Samuel Wanjema Kanganya v Lucy Wairuri Kihara
- Jurisdiction invoked
- Sections 1A, 1B, 3A, 77, 78 and 79 of the Civil Procedure Act; Order 42 Rules 6, 43 and 51 of the Civil Procedure Rules (appellate jurisdiction over subordinate court decision)
Relief refused
#Stay of execution of the judgment of 21/11/2024 pending appeal
Injunction/stay prayers were incompetent absent a duly filed appeal; extension of time refused so no appeal was on record
Temporary injunction/status quo over Githunguri/Ikinu/4170 and subdivided parcels pending appeal
Order 42 Rule 6(6) power to grant a temporary injunction is appellate and cannot be exercised in the absence of an appeal
Extension of time to file the appeal out of time
Four-month delay unexplained and allowing the extension would prejudice the Respondent given multiple related suits
Costs
Costs of the application to the 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.
Accordingly, the Court finds and holds that the prayer for a temporary injunction is incompetent and so is the prayer for status quo sought.
Leave is hereby granted to have the firm of FAITH RW & Co. Advocates to come on record to represent Appellant after Judgement.
The rest of the orders sought in the Notice of Motion dated 6/03/2025 are hereby declined.
Costs of the application to the Respondent.
Issues in the judgment
#Judgment is styled as involving an 'Appellant' but no competent appeal was on record; the applicant herself sought leave to file the appeal out of time
Replying Affidavit dated 14/10/2025 is stated to have been sworn in opposition to an application dated 6/03/2025; the dates appear anomalous
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kihara v Wanjema (Administratix of the Estate of Samuel Wanjema Kanganya) (Environment and Land Appeal E019 of 2025) [2025] KEELC 7766 (KLR)", Case Analysis (2025). Notice of Motion dated 6/03/2025 (arising from intended appeal against Githunguri ELC No. 25 of 2019; Samuel Wanjema Kanganya v Lucy Wairuri Kihara). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7766/eng@2025-11-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.