Mbayaki (Being sued as the administrator of the Estate of Pius Masinde Sisa) v Siisa (Suing as the administrator of the Estate of Francis Murunga Sisa) & another (Environment and Land Appeal E005 of 2026) [2026] KEELC 1149 (KLR)
The bottom line
#The High Court in Kakamega refused to stop a woman farming land she occupies, because the appellant failed to prove his appeal was worth hearing.
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 has met the threshold for grant of orders of temporary injunction pending hearing and determination of this appeal
Key legal issues
#Whether the appellant met the threshold for a temporary injunction pending appeal
The application was dismissed; the appellant failed to demonstrate an arguable appeal or satisfy the injunction conditions
The appellant relied solely on his registration as proprietor but did not attach the application and ruling appealed against, so the court could not assess the arguability of the appeal. The 1st respondent, supported by receipts, planted and tended the cane and her occupation of the property with a house thereon was not disputed. An injunction would effectively evict her before a full hearing.
Legal principles established
#- Where an applicant demonstrates compliance with the procedure for instituting an appeal and satisfies the Giella conditions, the court may grant temporary injunction pending appeal
- Granting an injunction against a person in occupation of suit land amounts to constructive eviction which the court will not grant before hearing the parties
Court orders
#- 1.The application dated 20th January 2026 is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Lower court (subordinate court)
- Not stated
- Jurisdiction invoked
- Order 42 Rule 6(5) of the Civil Procedure Rules - appellate jurisdiction to grant temporary injunction pending appeal
Relief refused
#Temporary injunction restraining the 1st respondent from entering, cultivating or carrying on activities on L.R. No. Bunyala/Budonga/277 pending the appeal
The appellant did not demonstrate an arguable appeal; he failed to attach the application and ruling appealed against, and the 1st respondent's occupation, planting and tending of the cane was not disputed
Order that the OCS Navakholo Police Station oversee compliance
Falls with the main application, which was dismissed
Costs
Application dismissed with costs to the 1st 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.
the appellant has not demonstrated an arguable appeal to warrant grant of a temporary injunction pending appeal. Therefore, the application dated 20th January 2026 lacks merit and the same is hereby dismissed with costs.
An applicant must demonstrate an arguable case with chances of success; show that if the injunction is not granted, they stand to sufier irreparable injury and the balance of convenience should tilt in favour of the applicant.
Granting an injunction to stop her from entering the suit property will be a constructive eviction, which this court cannot grant before hearing the parties.
Issues in the judgment
#Internal date inconsistency: the notice of motion is dated 20th January 2026 but the supporting affidavit is stated to be sworn on 20th February 2026, after the motion and after the replying affidavit of 30th January 2026
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbayaki (Being sued as the administrator of the Estate of Pius Masinde Sisa) v Siisa (Suing as the administrator of the Estate of Francis Murunga Sisa) & another (Environment and Land Appeal E005 of 2026) [2026] KEELC 1149 (KLR)", Case Analysis (2026). Not stated in the judgment (appeal against lower court's decision on application dated 4th August 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1149/eng@2026-02-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.