1. This ruling is in respect of a Notice of Motion Application dated 2nd January 2026, by the Appellant/Applicant, seeking the following orders:
a) Spent
b) That the respondent by himself, agents and/or servants be restrained by an order of injunction from trespassing, entering into, working thereon, gaining entry, cultivating, developing, alienating and/or in any other way interfering with parcel No. Ndungiri Block 8 Plot 328 pending inter partes hearing of the application.
c) That the respondent by himself, agents and/or servants be restrained by an order of injunction from trespassing, entering into, working thereon, gaining entry, cultivating, developing, alienating and/or in any other way interfering with parcel No. Ndungiri Block 8 Plot 328 pending the hearing and determination of this appeal.
d) That the order herein be served upon the Solai Police Station to ensure compliance and that peace prevails.
e) That costs of this application be provided for.
2. The application is based on the supporting affidavit of Kipchumba Cherono, sworn on 22nd January 2026, and the further affidavit sworn on 5th March 2026, together with the annexures.
3. The Applicant deponed that he is one of the sons of David Ngosos, who is the registered owner of the suit property, Ndungiri Block 8 Plot No. 328. He stated that his father has six sons namely Jolly alias Silas Cherono with a large tract of land at Moloi - already transferred to him, Julius Ngosos - land in Kapchore, Kapchumuso and Kiptoriot - already registered in his name, Thomas Cherono (the Respondent) who has over 8 acre parcel of land in Baringo/Kapchomuso and Togome — already registered in his name, Daniel Ngosos - deceased but land already allocated, Amos Cherono - land in Kapchomuso, Kipchumba Cherono - Ndungiri Block 8 plot No. 328 and a portion in Kapchomuso.
4. It was the Applicant’s disposition that the distribution was confirmed by the affidavit of Jolly Cherono, sworn on 8th April 2025. He further stated that he has constructed his matrimonial home and carries out farming on the suit land. Further, the Respondent has been trespassing on his plot, causing him damage and harm by threatening the Applicant’s family.
5. The Applicant also deponed that he has a beneficial interest in the subject plot, having been allocated the same by the father, and urged the court to allow the application for injunction.
6. The Respondent filed a replying affidavit sworn 16th January 2026 and deponed that he is a brother to the Appellant and that this application had been heard and determined before the lower court and dismissed.
7. He further stated that the Appellant assaulted him, and the matter was reported to the Solai Police Station. I note that the averments in the Replying affidavit are based on law which may not be within the Respondent’s knowledge. He urged the court to dismiss the application with costs.
APPELLANT/APPLICANT’S SUBMISSIONS
8. Counsel for the Applicant filed submissions dated 5th March 2026, and identified the issue of whether the Applicant has met the threshold for the grant of temporary injunctions.
9. Counsel relied on Order 40 Rule 1 of the Civil Procedure Rules and the cases of Giella vs Cassman Brown & Co. Ltd (1973) EA, Nguruman Limited v Jan Bonde Nielsen & 2 Others [20141 eKLR, Moses C. Muhia Njoroge & 2 others Vs Jane W. Lesaloi & 5 others (2014) eKLR, Mrao Ltd. Vs First American Bank of Kenya & 2 others, and submitted that the Applicant has met the threshold for the grant of the orders sought.
10. Counsel further relied on the case of Pius Kipchirchir Kogo Vs Frank Kimeli Tenai [2018] eKLR, and submitted that when the court is in doubt, it should rule on a balance of convenience. Counsel urged the court to allow the Application as prayed.
RESPONDENT’S SUBMISSIONS
11. Counsel filed submissions dated 16th February 2026 and identified the issues for determination as to whether the Applicant is entitled to the orders sought and who should bear the costs of the application.
12. Counsel gave a brief background of the case and relied on Section 7 of the Civil Procedure Act, which provides for the ingredients of the doctrine of res judicata. Counsel also cited the case of Sawe & 2 others (All suing as the legal representatives of the Estate of David Cheptum Sawe) v Cherotich & 5 others, [2026] KEHC 1383 (KLR), where the court held that the doctrine of res judicata bars subsequent proceedings where there has been adjudication by a court of competent and/or concurrent jurisdiction which conclusively determined the rights of the parties with regard to all or any matters in controversy.
13. Mr. Ouma, further submitted that this Application is res judicata, having been heard and determined by the lower court and a ruling delivered on 4th October, 2025, which is the subject of this appeal.
14. It was counsel’s submission that the court cannot entertain the instant application, which not only seeks to introduce new evidence but also invites the court to hold parallel proceedings with the trial court where the matter is pending hearing and determination. Counsel submitted that allowing the application is tantamount to determining the appeal at the interim stage, and urged the court to dismiss the application with costs.
15. Mr. Ouma relied on the cases of ALI KITSAO KATANA V KASSIM MOHAMED OMAR & 5 OTHERS [2018] eKLR, NAFTALI RUTHI KINYUA V PATRICK THUITA GACHURE & ANOTHER [2015] eKLR, and submitted that the Applicant is not the registered owner of the suit land and has not established a prima facie case with a probability of success.
16. On the issue of whether the Applicant will suffer irreparable harm that cannot be compensated by way of damages. Counsel cited the case of KITAMAIYU LIMITED V COUNTY GOVERNMENT KIAMBU & ANOTHER, [2018] eKLR, and submitted that the Applicant has not demonstrated a crystallized right over the suit property as his father, who is the registered owner, is still alive, and there is no evidence that the suit property has been transferred to the Applicant.
17. On the issue of balance of convenience, Mr. Ouma relied on the case of Kimetto & another v Yano (Civil Appeal E015 of 2022) [2024] KEELC 1599 (KLR), and submitted that the Applicant does not dispute that the Respondent is in physical occupation of the suit property and has been living in their father’s house built thereon since time immemorial. Further, the grant of the orders sought would be tantamount to evicting the Respondent at the interim stage. Counsel urged the court to dismiss the application with costs.
ANALYSIS AND DETERMINATION
18. The issues for determination are whether the Applicant is entitled to the injunctive orders sought and who bears the costs of this application. This Order 42 Rule 6(6) gives the court powers to grant orders of temporary injunction pending hearing and determination of an appeal on such terms as it deems fit, as long as the procedure for filing an appeal from a subordinate court has been complied with.
19. Order 42 Rule 6(6) provides as follows:
“Notwithstanding anything contained in sub-rule (1) of this rule, the High Court shall have power in the exercise of its appellate jurisdiction to grant a temporary injunction on such terms as it thinks just, provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.”
20. The principles for the grant of a temporary injunction pending appeal are well settled. In the case of Patricia Njeri & 3 Others vs. National Museum of Kenya [2004] eKLR, the Learned Judge held that the principles applicable in considering an application for the grant of orders of temporary injunction pending appeal are as follows:
a. “An order of injunction pending Appeal is a discretionary which will be exercised against an Applicant whose Appeal is frivolous.
b. The discretion should be refused where it would inflict great hardship than it would avoid.
c. The Applicant must show that to refuse the injunction would render the appeal nugatory.
d. The court should also be guided by the principles in Giella Vs. Cassman Brown [1973] EA 358.”
21. Similarly, in the Court of Appeal case of Charter House Investments Ltd Vs Simon K. Sang & 3 Others (2010) eKLR, it was held that: -
“Injunction is an equitable and discretionary remedy, given when the subject matter of the case before the Court requires protection and maintenance of the status quo. The award of a temporary injunction by Courts of equity has never been regarded as a matter of right even where irreparable injury is likely to result to the Applicant. It is a matter of sound judicial discretion, in the exercise of which the Court balances the convenience of the parties and possible injuries to them and to third parties.”
22. This case is still pending for hearing and determination before the lower court. The Appeal is against the ruling by the lower court, which dismissed an application for an injunction.
23. In the case of Madhupaper International Ltd vs Kerr (1985) eKLR, the Court of Appeal held that where a Judge dismisses an application for an interlocutory injunction, he has jurisdiction to grant an applicant an injunction pending appeal to prevent the appeal being rendered nugatory in the event the appeal is successful.
24. The Applicant admitted that he is a beneficial owner of the suit land, but the same is registered in his father’s name, who is still alive. It is also not disputed that the Respondent is in occupation of part of the suit land.
25. This is a case that should benefit from alternative dispute resolution mechanisms, as it involves two brothers who want to inherit their father’s land while still alive. The court notes that the father is still alive but not able to represent himself, hence the court appointed a Guardian ad litem who is not a party to this suit.
26. I find that the Applicant has not met the threshold for the grant of a temporary injunction and therefore the application is dismissed with each party bearing their own costs.