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Case Brief · caselaw.co.ke
ELCPartially AllowedELC Case No. 70 of 2021 (Formerly Mombasa ELC No. 205 of 2019)

Registered Trustees Catholic Archdiocese of Mombasa v Joseph P. Kariithi & 4 others

Environment and Land Court of Kenya
28 September 2026
4,920 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~20 min to read original · ~4 min brief

The bottom line

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A Kenyan court froze a Kshs 100 million land sale pending appeal, confirming judges can still protect property after delivering judgment.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Kwale (E.G. Nderitu LJ) determined the Plaintiffs' Notice of Motion dated 13th April 2026 seeking preservation orders over Land Parcel Number Kwale/Kidimu/12 (approximately 71.1 hectares, valued at about Kshs. 100,000,000) pending an intended appeal to the Court of Appeal. The suit had been dismissed on 2nd February 2026, with the inhibition over the suit property vacated, though a temporary 21-day inhibition was granted with leave to file a formal application. The 1st and 2nd Defendants opposed, contending the Court had become functus officio after judgment and that the Plaintiffs had not demonstrated an arguable appeal or substantial loss, and sought security of Kshs. 100,000,000 if any relief was granted. The Court held as a threshold matter that it was not functus officio: an application for an injunction pending appeal is a sui generis remedy exercised under the court's inherent jurisdiction under Section 3A of the Civil Procedure Act (the Erinford principle), distinct from a stay of execution under Order 42 rule 6(2). Finding the draft Memorandum of Appeal raised substantial questions, and that disposal of the property would destroy the substratum of the appeal and introduce third-party interests, the Court held the balance of convenience favoured preservation. It granted a prohibitory injunction against alienation and directed the Land Registrar to preserve the integrity of the register, conditional on the Plaintiffs lodging the appeal within 21 days. The prayer for surrender of the title deed failed. Each party was ordered to bear its own costs.

Questions the Court framed

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

  1. 1.Whether the Plaintiffs' application dated 13th April 2026 is merited
  2. 2.Who should bear costs of the application

Key legal issues

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01

Whether the Court, having delivered judgment, was functus officio and thus lacked jurisdiction to entertain the application

Holding

The Court was not functus officio; it had jurisdiction under Section 3A of the Civil Procedure Act to grant an injunction pending appeal under Order 40 Rule 2(1).

Reasoning

Relying on Jersey Evening Post v Al Thani as adopted by the Supreme Court, proceedings are only concluded when judgment is perfected. Following Skycrapers Africaway, James Juma Muchemi and Erinford Properties, the court held that an injunction pending appeal is a sui generis remedy exercised under inherent jurisdiction, distinct from stay of execution under Order 42 rule 6(2), and does not amount to sitting on appeal over its own judgment.

p. 12
02

Whether the intended appeal was arguable and would be rendered nugatory absent preservation orders

Holding

The draft Memorandum of Appeal raised substantial questions deserving consideration, and disposal of the suit property would destroy the substratum of the appeal; the balance of convenience favoured preservation.

Reasoning

Applying Wasike v Swala, an arguable appeal need not necessarily succeed but must not be idle or frivolous. On nugatory-ness, per Re: Estate of Harish Chandra Hindocha, the court weighed the hardship on both sides per African Safari Club, finding that third-party interests from a sale would complicate enforcement if the appeal succeeded, whereas the defendants' proprietary interests would remain unaffected by an injunction.

p. 14
03

Whether the 1st and 2nd Defendants should surrender their title deed for custody pending appeal

Holding

The prayer for surrender of titles failed for lack of sufficient legal basis.

Reasoning

The court found that preservation of the suit property could adequately be achieved through the prohibitory injunction and the register-preservation order already granted, making an order compelling surrender of the title unnecessary at that stage.

p. 17

Legal principles established

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  • An application for an injunction pending appeal is not an application for stay of execution under Order 42 rule 6(2); it is brought under the court's inherent jurisdiction (Erinford principle) and does not offend functus officio.
  • The functus officio doctrine does not bar a court that has delivered judgment from granting an injunction pending appeal to preserve the substratum of the appeal.
  • The overarching principle in an injunction pending appeal is to exercise discretion so as to prevent the appeal from being rendered nugatory.

Court orders

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  1. 1.Prohibitory injunction restraining the 1st and 2nd Defendants from selling, offering for sale, transferring, charging, mortgaging and/or dealing in any manner with Land Parcel Number Kwale/Kidimu/12 pending the hearing and determination of the intended appeal
  2. 2.Order directed to the 3rd Defendant, the Land Registrar, to preserve the integrity of all registers and records relating to the suit property and to refrain from effecting any disposition inconsistent with the Court's orders pending the determination of the intended appeal
  3. 3.The injunction granted conditionally upon the Plaintiffs lodging the intended appeal within 21 days from the date of the ruling
  4. 4.Each party to bear its own costs of the application

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Section 3A of the Civil Procedure Act (inherent jurisdiction), read with Order 40 Rule 2(1) of the Civil Procedure Rules and Section 13(5) of the Environment and Land Court Act

Relief refused

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Prayer VII - order compelling the 1st and 2nd Defendants to surrender the title deed for Land Parcel Number Kwale/Kidimu/12 to the 3rd Defendant for custody pending appeal

No sufficient legal basis established; preservation adequately achieved through the orders already granted

p. 17

Costs

Each party shall bear its own costs of the application.

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, for the reasons set out above, the Court finds merit in the application dated 13th April 2026 and allows it in terms of prayers (VI) and (VIII) of the Notice of Motion dated 13th April 2026, subject to the condition that the Plaintiffs lodge the intended appeal within 21 days from the date hereof. Each party shall bear its own costs of the application.
p. 17Final orders and disposition
It is similarly crystal clear that the court is not functus officio and doctrine of functus officio does not bar the Court from considering the instant application.
p. 12Functus officio and jurisdiction to grant injunction pending appeal
The Court is therefore satisfied that the balance of convenience favours preservation of the suit property pending the determination of the intended appeal.
p. 16Balance of convenience
The Plaintiffs have not demonstrated that preservation of the suit property cannot adequately be achieved through the orders already granted. The prayer for surrender of the titles therefore fails.
p. 17Refusal of title surrender prayer

Issues in the judgment

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minor

Application dated 13th April 2026 yet judgment was delivered 2nd February 2026; further affidavit dated 27th July 2026 - dates appear internally consistent but far in the future relative to typical filing timelines.

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, "Registered Trustees Catholic Archdiocese of Mombasa v Joseph P. Kariithi & 4 others", Case Analysis (2026). ELC Case No. 70 of 2021 (Formerly Mombasa ELC No. 205 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6051/eng@2026-09-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.