Registered Trustees Catholic Archdiocese of Mombasa v Joseph P. Kariithi & 4 others
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Plaintiffs' application dated 13th April 2026 is merited
- 2.Who should bear costs of the application
Key legal issues
#Whether the Court, having delivered judgment, was functus officio and thus lacked jurisdiction to entertain the application
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).
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.
Whether the intended appeal was arguable and would be rendered nugatory absent preservation orders
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.
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.
Whether the 1st and 2nd Defendants should surrender their title deed for custody pending appeal
The prayer for surrender of titles failed for lack of sufficient legal basis.
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.
Legal principles established
#- 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
#- 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.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.The injunction granted conditionally upon the Plaintiffs lodging the intended appeal within 21 days from the date of the ruling
- 4.Each party to bear its own costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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
Costs
Each party shall bear its own costs of the application.
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, 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.
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.
The Court is therefore satisfied that the balance of convenience favours preservation of the suit property pending the determination of the intended appeal.
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.
Issues in the judgment
#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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.