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ELCPartially AllowedNotice of Motion dated 6/03/2025 (arising from intended appeal against Githunguri ELC No. 25 of 2019; Samuel Wanjema Kanganya v Lucy Wairuri Kihara)

Kihara v Wanjema (Administratix of the Estate of Samuel Wanjema Kanganya) (Environment and Land Appeal E019 of 2025) [2025] KEELC 7766 (KLR)

High Court of Kenya (Environment and Land appeal jurisdiction)
11 November 2025
2,262 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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By Notice of Motion dated 6/03/2025, the applicant (appellant) sought leave for the firm of Faith RW & Co. Advocates to come on record after judgment, a stay of execution of the judgment of Hon. Peter Muholi delivered on 21/11/2024 in Githunguri ELC No. 25 of 2019, alternatively a temporary injunction or status quo order preserving Githunguri/Ikinu/4170 and parcels subdivided from Githunguri/Ikinu/503 pending appeal, and extension of time to file a record of appeal. The respondent opposed, arguing the application was defective because no leave had been granted to appeal out of time, the statutory timelines had not been met, and the matter amounted to forum shopping and was potentially res judicata given multiple prior suits. Mogeni J framed five issues. Leave for the incoming advocates was granted as the prayer was unopposed by the outgoing firm. However, the court held that its power to grant an interim injunction pending appeal under Order 42 Rule 6(6) is appellate and presupposes compliance with the appeal-institution procedure under Order 42 Rule 1; since no Memorandum of Appeal had been filed, the injunction and status quo prayers were incompetent. On extension of time, applying Mwangi v Kenya Airways Ltd, the court found the four-month delay prolonged and unexplained, and that extension would prejudice the respondent given potentially res judicata multiple suits. All prayers except change of advocates were declined, with costs to the respondent. Judgment delivered at Thika on 11 November 2025.

Questions the Court framed

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

  1. 1.Whether the Applicant is entitled to an order for change of Advocates.
  2. 2.Whether the application for injunction is incompetent under Order 42 of the Rules.
  3. 3.Whether the Applicant has made out a case for extension of time to file an Appeal out of time.
  4. 4.Whether the Applicant has made out a case for the grant of an injunction.
  5. 5.Who shall bear the costs of the application?

Key legal issues

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01

Change of advocates after judgment

Holding

Leave granted where the application was served on the outgoing advocates and unopposed

Reasoning

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.

p. 3
02

Competency of injunction/stay pending appeal without a filed appeal

Holding

Incompetent - the appellate jurisdiction under Order 42 Rule 6(6) presupposes compliance with the procedure for instituting an appeal

Reasoning

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.

p. 4
03

Extension of time to appeal out of time

Holding

Refused - prolonged, unexplained delay of about four months and prejudice to the respondent

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.Leave is granted to have the firm of FAITH RW & Co. Advocates to come on record to represent the Appellant after Judgment.
  2. 2.The rest of the orders sought in the Notice of Motion dated 6/03/2025 are declined.
  3. 3.Costs of the application to the Respondent.

The bench

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

majority

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

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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

p. 4

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

p. 4

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

p. 5

Costs

Costs of the application to the Respondent.

Quotable passages

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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.
p. 4competency of injunction pending appeal
Leave is hereby granted to have the firm of FAITH RW & Co. Advocates to come on record to represent Appellant after Judgement.
p. 5final orders - change of advocates
The rest of the orders sought in the Notice of Motion dated 6/03/2025 are hereby declined.
p. 5final orders - dismissal of remaining prayers
Costs of the application to the Respondent.
p. 5final orders - costs

Issues in the judgment

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minor

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

minor

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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.