RULING
1. This Ruling is in respect of an Application by way of Notice of Motion dated 27th of November 2025 where the Applicant seeks the substantive order of an injunction pending Appeal in terms as follows; -
(i) Spent.
(ii) This Honourable court be pleased to issue a temporary injunction restraining the Appellants/Respondents by themselves, their agents, servants, employees, family members or any persons acting under her instructions from cutting, felling, destroying, removing, selling or in any way interfering with the trees standing on the parcels No. Transmara/Oldanyati/767/ 739 and 740 pending the hearing and determination of this Appeal.
2. Grounds in support of the application are interalia
(i) That there is a pending Appeal, against the ruling of the trial court delivered on 7th November 2024, and there is a stay of further proceedings issued by this court in respect of the proceedings before the trial court in CMELC 96/2023 and the said trial court cannot hear an application for injunctiin.
(ii) The Applicant planted the trees on suit parcels, and since the grant of stay of proceedings the Applicants/Respondents started harvesting and cutting the trees, causing environmental damage and permanent loss to Applicant.
(iii) The balance of convenience favours the Applicant, so as to preserve the trees, which form substance of the Appeal and the obtaining status quo.
3. The application is further supported by the supporting affidavit of the Applicant Tina Ole Sampoti who reiterates the grounds in support of the application in the depositions therein, and has annexed copies of Agreements for sale, objection proceedings and a green card to the property.
4. That the Appeal herein relates to an order of consolidation, and pursuant to the said consolidation and order of stay of proceedings was issued hence the trial court cannot proceed to hear the injunction Application. That the issue of the trees is a matter that is subject of the suit before the trial court as per the Amended statement of defence.
5. The application is opposed by grounds of opposition dated 11th December 2025 as well as a Replying affidavit of even date. The grounds of opposition being interalia that; -
(i) That similar application dated 18.07.2024 had been filed in CMELC No. E096/2023 and was heard and determined on merit, rendering this Application Resjudicata.
(ii) Another application was filed in CMELC No. E045/2024 seeking similar orders, and was heard and determined.
6. In the Replying affidavit
The Respondent deponed of the existence of two Rulings in respect of similar applications one filed in Kilgoris CMELC No. E096/2023 appearing on pages 194 – 221 of supplementary record of Appeal; and one at pages 174-180 of supplementary record of Appeal.
7. That Applicant filed a further affidavit, in which he deposed that the issue before court was not the ownership of parcels of land, but preservation of the trees that are subject of this Appeal.
8. The Application was canvassed by way of written submissions.
Mr. Shira Learned Counsel for the Applicants submitted interalia; -
On the principles for Grant of interlocutory Appeal and cited the case of Giella Vs. Cassman Brown (1973) E.A 358 and Nguruman Limited Vs. Jan Bonde Nielsen and 2 Others.
9. In respect of this application brought under provisions of order 42 Rule 6 he submitted that the court order to preserve the subject matter of the Appeal so as not to render the Appeal nugatory.
Appellant/Respondents Submission
10. Mr. Mwita Nyangi for the Respondent submits that the Application herein was litigated before the trial court and Ruling was made, and no Appeal was preferred against the said Rulings hence the Applicants are relitigating issues already litigated at the trial court. He cites section 7 of the Civil Procedure Act on Resjudicata as well as IEBC Vs. Maina Kiai and 5 and urges the court to dismiss the Application.
Issues for Determination
(i) Whether or not the application is Resjudicata.
(ii) Whether or not the application is merited.
(iii) What reliefs ought to issue.
(iv) Who bears the cost of the application?
Analysis and Determination
11. Since Resjudicata is a jurisdictional issue, the court framed the same as the first issue for determination. In both the grounds of opposition as well as the Replying affidavit the Respondent alluded to similar applications having been determined by the trial court, and that the same cannot be relitigated; before this court, the Appellant/Respondent filed a Replying affidavit but did not annex the said Applications and/or Ruling. The Appellant instead referred the court to two supplementary Record of Appeal. Directions in respect of this Appeal under Order 42 Rule 10 have not been issued, it follows that as the Appeal has not been admitted for hearing, the court thus is unable to refer to the supplementary record of Appeal, and hence the court has been denied an opportunity to look at the applications and Rulings made by the trial court so as to make a determination whether this application is Resjudicata. In absence of the said evidence of Resjudicata placed before court, the court cannot make a finding that the application is Resjudicata; and the court answers issue No. 1 in that negative.
12. On whether the Application is merited
The Application seeks injunction pending Appeal, whose principles were stated in the case of Patricia Njeri and 3 Others Vs. National Museum of Kenya; as quoted in the decision in the case of Timothy Kisina Kithokoi Vs. Elijah Kitele and Another, where the principles were stated.
(a) An order of injunction pending appeal is discretionary which will be exercised against an applicant whose appeal is frivolous.
(b) The discretion should be refused where it would inflict greater 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).
13. In his application, the Applicant has exhibited a copy of the Plaint in Kilgoris MCELC E096/2023, whose consolidation is subject of this Appeal. Prayer 4 of the said Plaint, the Applicant as counter-claimer pleaded for general damages for trespass and the costs of the already cut down trees, while prayer (iii) sought a permanent injunction against felling of trees, interalia. It follows that the issue of the trees, forms part of the subject matter of E096/2023, which is subject of this Appeal against the consolidation.
14. The Applicant has made out a case for preserving of the subject matter so as the Appeal is not rendered nugatory and the counter-claim pending before the trial court an academic exercise.
15. In this regard, the Application is thus merited and the court thus confirms the orders issued on 16.12.2025 and allows the application dated 27.11.2025 in terms of prayer No. 2 thereof.
16. The Applicants are equally awarded costs of this Application.
Dated at Kilgoris this 19th day of May 2026
Hon. M.N. Mwanyale
Judge
In the presence of
CA – Sylvia/Clara
Mr. Mwita for Appellant/Respondent
Mr. Shira for Respondent/Applicant
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