Mwaura v Joreth Ltd & 2 others

3. Pending the hearing and determination of the said appeal, the applicant wishes to preserve the status quo. He points out that during the pendency of the suit before the ELC, the respondents transferred the suit property to the interested/aected party on 2nd February, 2024. He contends that the respondents and the interested/aected party were in the process of altering the character of the suit property by drilling therein. The applicant asserts that he has an arguable appeal which is likely to succeed. He will suer irreparable loss that will render the appeal nugatory if the order of injunction craved for is not granted. In particular, he stated that if he is evicted from the suit property, the “massive Investments” that he had undertaken therein would be wasted and will not be compensable by an award of damages. The application is supported by the annexed adavit of the applicant, Joseph Karanja Mwaura. 4. The application is opposed. Dr. Jonathan Ciano, the manager of the 1st respondent swore a replying adavit in opposition to the application. He swore that the intended appeal was not arguable because the applicant failed to establish that he had been in occupation of the suit property in a continuous, uninterrupted adverse possession. He deponed that the applicant does not reside on the suit property and previous attempts made by the applicant to develop the suit property was thwarted by a court order. He denied any knowledge of an entity known as Simplepay Capital Limited and insists that the suit property was sold and transferred to the 2nd and 3rd respondents on 28th July, 2008. The applicant had not established that any drilling equipment had been located in the suit property. He deponed that the applicant had not established the twin principles of arguability and the nugatory aspect to entitle him to the orders of injunction that he craves for in the application. He urged the Court to dismiss the application. 5. Prior to the plenary hearing of the application, both the applicant and the 1st respondent led written submissions in support of their respective opposing positions. During plenary hearing of the appeal, Mr. King’ara, learned counsel for the applicant and Mr. Omondi, learned counsel for the 1st respondent relied entirely on their written submission in support of their respective clients’ cases. There were no responses led by either the 2nd and 3rd respondents or the proposed interested/aected party. Neither did they le any written submissions though served. 6. Rule 5(2)(b) of the Court of Appeal Rules grants this Court jurisdiction to grant interim relief to an applicant and preserve the subject matter of the appeal pending the hearing and determination of the appeal. In NCBA Bank Kenya PLC V. Multiple Hauliers E.A. Limited [2025] KECA 1469 (KLR), this Court held thus: “ We reiterate that Rule 5(2)(b) of the Rules of this Court is a procedural innovation designed to empower this Court to entertain an interlocutory application for the preservation of the subject matter of the appeal in order to ensure the just and eective determination of the appeal. A stay will only be granted if the applicant is able to show that the appeal or the intended appeal has at least one arguable point (see Chris Munga N. Bichange v. Richard Nyagaka Tongi & 2 others [2013] KECA 141 (KLR). An arguable appeal is not necessary one that will succeed, but simply one that is deserving of the court’s consideration. Secondly, the applicant has to show that, if stay is not granted, the appeal or intended appeal, if successful, will be rendered nugatory. (See Registered Trustees, Kenya Railways Sta Retirement Benet’s Scheme v. Milimo Muthoni & Company Advocates & 2 others [2022] KECA 491 (KLR).” https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1910/eng@2026-09-25 2

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7. The above principles, though in regard to an application seeking stay of execution pending the hearing of appeal, similarly applies to an application for injunction pending the hearing of an appeal. Both seeks to preserve the suit property pending the hearing and determination of an appeal. 8. In the present application, the applicant contends that the ELC gave short shrift to his case which sought a declaration that he had acquired title in respect of the suit property by adverse possession. The ELC in its Judgment held that the applicant had failed to establish that he had been in continuous, uninterrupted occupation of the suit property openly and without the permission of the registered owner within the statutory period of twelve years. The applicant states that he has an arguable appeal that will likely succeed. In the draft memorandum of appeal annexed to the adavit in support of the application, the applicant raises eight (8) grounds of appeal including the ground that the ELC erred when it failed to nd that the applicant had been in occupation of the suit property since 1995. Although the 1st respondent asserts that the intended appeal is without substance, we are prepared, and we hereby do, to hold that the applicant has an arguable appeal which should be given a chance to be ventilated before this Court noting that the grounds of appeal touches on the interpretation of the law that the ELC applied to the facts placed before it in evidence. 9. As regards whether the applicant established to our satisfaction that his intended appeal will be rendered nugatory if we do not grant the order of injunction craved for, we are of the considered view that the applicant failed to do so. The reason for this is obvious. The applicant is not in possession of the suit property. The applicant failed to establish that he is in possession or has undertaken any developments on the suit property that is worth preserving. In any event, it is apparent from adavit evidence that the 2nd and the 3rd respondents are in possession. The Court cannot issue an injunction in such circumstances. It will be in vain. 10. As regards the application by the applicant that sought to enjoin SimplePay Capital Limited to the appeal, we are not satised that the applicant established sucient basis for us to allow the application. The application lacks merit. 11. Accordingly, the application is hereby dismissed with costs to the 1st respondent. DATED AND DELIVERED AT NAIROBI THIS 25TH DAY OF SEPTEMBER, 2026. L. KIMARU ............................... JUDGE OF APPEAL L. NJUGUNA .............................. JUDGE OF APPEAL DR. J.O. OKELLO ................................ JUDGE OF APPEAL I certify that this is a true copy of original. Signed DEPUTY REGISTRAR. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1910/eng@2026-09-25 3

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