The Appellant/Applicant has moved this Court by a Notice of Motion dated 26th November 2025 seeking orders of inhibition against any dealings in respect of Land Parcel Number GATURI/WERU/2230 pending the hearing and determination of this application and the substantive appeal. He further seeks an order directing the Chief Land Registrar, Embu County, to register an inhibition against the said title.
The application is premised on the grounds set out on its face and the supporting affidavit sworn on even date. In brief, the Applicant depones that judgment in Embu MCELC Case No. E019 of 2021 was delivered on 2nd October 2025 dismissing his suit with costs; that he has lodged an appeal and is in the process of preparing the record of appeal; and that unless this Court intervenes, the 2nd and 3rd Respondents may alienate or otherwise deal with the suit property, thereby rendering the appeal nugatory.
The 1st Respondent opposed the application on the basis that the suit was fully heard and dismissed; that he is entitled to enjoy the fruits of the judgment; that the decree appealed from is a negative order; and that no exceptional circumstances have been demonstrated. The 3rd Respondent similarly opposed the application, contending that the Applicant has not shown substantial loss, that there is no imminent execution, and that the application is an abuse of the court process.
The Applicant filed written submissions relying on Section 68 of the Land Registration Act, 2012 and the decisions in Peter Kariuki Njue v Severina Njira Kithumbu & Another (2020) KEELC 159 (KLR) and Japhat Kaimenyi M’Ndutho v M’Mbwiria (2012) KLR.
Issue for Determination
The single issue for determination is whether the Applicant has met the threshold for the grant of an order of inhibition under Section 68 of the Land Registration Act pending the hearing and determination of the appeal.
LEGAL ANALYSIS AND DETERMINATION
I have considered the application, the supporting affidavit, the replying affidavit and the rival submissions as well as the applicable law. Section 68(1) of the Land Registration Act empowers the Court to make an order of inhibition “for a particular time, or until the occurrence of a particular event, or generally until a further order” where it is satisfied that such an order is necessary to preserve the subject land. The power is discretionary and must be exercised judiciously, with due regard to the peculiar circumstances of each case.
The principles guiding the grant of an inhibition are now well settled. An applicant must demonstrate: first, that there is a serious question to be tried or an arguable appeal; secondly, that unless the order is granted there is a real risk that the suit property may be alienated or otherwise dealt with in a manner that would render the appeal nugatory; and thirdly, that the balance of convenience tilts in favour of preserving the property. (See Peter Kariuki Njue v Severina Njira Kithumbu & Another (supra); Japhat Kaimenyi M’Ndutho v M’Mbwiria (supra)).
On the first limb, it is common ground that the Applicant has lodged an appeal. The grounds raised touch on alleged fraud, lack of consent, and proprietary interests in the suit property. An arguable appeal need not be one that must succeed, but it must raise bona fide issues deserving of judicial consideration. Without delving into the merits of the appeal, I am satisfied that the appeal is not frivolous and raises serious questions warranting preservation of the subject matter.
On the second limb, the Applicant must show a real risk of alienation or dealings that may defeat the appeal. The suit property is presently registered in the name of the 2nd Respondent and is charged to the 3rd Respondent. It is not disputed that the charge secures a substantial commercial loan. In such a setting, the risk of further dealings, including a possible exercise of the statutory power of sale in the event of default, cannot be discounted. While there is no evidence that a sale process has formally commenced, the law does not require an applicant to wait until the horse has bolted before seeking preservatory relief. It is sufficient if there is a reasonable apprehension, grounded in the surrounding circumstances, that the substratum of the appeal may be imperilled.
In Japhat Kaimenyi M’Ndutho v M’Mbwiria (supra), the Court observed that the purpose of an inhibition is to preserve the suit property pending the determination of a dispute so that the court’s eventual decision is not rendered an exercise in futility. That reasoning applies with equal force here. If the suit property were to be transferred to third parties or sold in exercise of the statutory power of sale before the appeal is heard, the Applicant’s appellate remedy would be gravely undermined, if not altogether extinguished.
On the balance of convenience, the Court is alive to the Respondents’ argument that they are entitled to enjoy the fruits of their judgment. That is a weighty consideration. However, the orders sought do not vest possession in the Applicant, nor do they reverse the judgment of the trial court. They merely freeze the register against further dealings for a limited period pending the determination of the appeal. Any prejudice to the Respondents is therefore temporary and reversible, whereas the prejudice to the Applicant, should the suit property change hands irretrievably, would be permanent and irreparable.
It is also material that the decree appealed from is a negative order. While that would ordinarily militate against the grant of a stay of execution, an inhibition is conceptually distinct from a stay. Its object is not to suspend the judgment but to preserve the res pending appellate adjudication. In appropriate cases, therefore, the court may grant an inhibition even where a stay would not lie, provided the statutory and equitable thresholds are met.
Comparative jurisprudence reinforces this approach. In South Africa, interim interdicts pending appeal are granted where there is a well-grounded apprehension of irreparable harm and the balance of convenience favours preservation (Eriksen Motors (Welkom) Ltd v Protea Motors, Warrenton 1973 (3) SA 685 (A)). In India, courts have emphasized that interim orders may issue to preserve the subject matter of an appeal where otherwise the appeal would be rendered nugatory (State of Rajasthan v Swaika Properties AIR 1985 SC 1289). In England, courts have similarly recognized the need for preservatory orders to prevent the dissipation or irreversible alteration of property pending appeal, where the justice of the case so demands (Fourie v Le Roux [2007] UKHL 1).
These authorities converge on a common principle: that interim preservatory relief is justified where it is necessary to safeguard the efficacy of the appellate process, even as the court remains vigilant not to undermine the authority of final judgments without good cause.
The Court is further guided by the constitutional imperatives of access to justice and proportionality under Articles 48 and 159 of the Constitution. The right of appeal is a substantive component of the justice system. It would be hollow if the subject matter of the appeal were allowed to dissipate or be irreversibly altered before the appellate court can pronounce itself. At the same time, the Court must avoid oppressive or disproportionate orders. In my view, a time-bound inhibition, limited strictly to preservation of the register and without disturbing possession or use, strikes a fair and proportionate balance between the competing interests of the parties.
Taking all these factors into account, I am persuaded that this is a proper case for the grant of an order of inhibition under Section 68 of the Land Registration Act. The Applicant has demonstrated an arguable appeal, a reasonable apprehension of prejudice, and a balance of convenience favouring preservation of the suit property.
Disposition
In the premises, the Notice of Motion dated 26th November 2025 is merited and is hereby allowed on the following terms:
a) An order of inhibition is hereby issued inhibiting any dealings, transactions, registrations, subdivisions, transfers, further charges, or any other dealings whatsoever over Land Parcel Number GATURI/WERU/2230 pending the hearing and determination of the appeal.
b) The Chief Land Registrar, Embu County, is hereby directed to forthwith register an inhibition against Land Parcel Number GATURI/WERU/2230 in terms of this ruling.
c) The Applicant shall, within sixty (60) days from the date hereof, file and serve the Record of Appeal, failing which the inhibition orders herein shall automatically lapse unless extended by the Court for good cause shown.
d) The costs of the application shall abide the outcome of the appeal.
It is so ordered.
DATED, SIGNED AND DELIVERED AT EMBU THIS 29th DAY OF January, 2026.
HON. E.C CHERONO
E.L.C JUDGE
In the presence of;
1. Mrs Makworo for the Appellant/Applicant.
2. Mr. KiplimoH/B for Mugambi Njeru for the 1st Respondent.
3. M/S Diana