Several proceedings can concern the same apartment without offering the same remedy. An appeal about restoring a struck-out suit does not necessarily suspend enforcement flowing from a separate arbitration. Before relying on an appeal as protection against eviction, identify the decision that actually authorises the threatened step.
That distinction controlled The EACFPHAB Ltd and two others v Othere Limited and four others, Civil Application No. E487 of 2024. The Court of Appeal at Nairobi delivered its ruling on 3 October 2025. The official Judiciary collection contains the decision discussed here. Its first paragraph places the apartment in Lavington, Nairobi; references below are to numbered paragraphs.
Two routes through the dispute
The applicants wanted an injunction preventing eviction pending an intended appeal. The proposed appeal challenged the Environment and Land Court's decision to strike out their suit. That suit sought recognition of the first applicant as half owner of the apartment, cessation of construction on neighbouring land and environmental restoration (paragraphs 1-3).
The ELC had found the suit barred by res judicata: the issues should have been addressed in earlier proceedings or arbitration. The applicants disputed that conclusion, arguing in part that some of them had not been parties to the earlier proceedings. Their assertions about lawful occupation, investment and irreparable loss were arguments for protection, not ownership findings made in this ruling (paragraphs 3, 6-8).
A separate dispute had arisen under the apartment sale agreement between the third applicant and the first respondent. An arbitrator found the purchaser in breach, dismissed his claim and ordered payment within 75 days, failing which he would be evicted. The award was subsequently adopted as a court order. This history is recorded in the appellate ruling; the award and adoption decision were not independently reviewed for this account (paragraphs 4-5).
The opposing respondents argued that eviction arose from that separate enforcement process, not the suit under appeal. They also contended that any loss could be compensated in damages. Those submissions framed the difference between the requested injunction and the relief available in the intended appeal (paragraphs 9-11).
One requirement met, the other failed
Under rule 5(2)(b), the applicants needed both an arguable appeal and a demonstration that refusing protection would render a successful appeal nugatory. The court emphasised that it should not conclusively determine issues reserved for the appeal itself (paragraphs 14-15).
The applicants passed the first requirement. Whether the ELC had correctly applied res judicata and struck out the suit was an arguable question. That finding did not reinstate the suit or establish the claimed half ownership (paragraph 16).
They failed the second requirement. Eviction had not been a matter for determination in the struck-out suit. It arose from the arbitral award, and no appeal against that award or its adoption was before this court. Success in the intended appeal would produce reinstatement of the suit; refusing the requested injunction would not defeat that remedy (paragraphs 18-20).
The court added that, even had eviction been in issue before the ELC, there was no indication the respondents could not compensate the applicants in damages. It dismissed the injunction application with costs to the respondents. This was an interim-relief ruling, not dismissal of the intended appeal on its merits (paragraphs 20-21).
Match the order to the risk
For a purchaser, occupier or adviser, map each proceeding to its actual remedy and enforcement source. Ask an advocate which current order restrains eviction, rather than assuming that any pending appeal does. This historical ruling does not establish whether eviction occurred or how later proceedings ended.
Explore ArdhiScore's scope and limitations for parcel intelligence from available court, gazette and field evidence. It can support professional diligence, but cannot guarantee prevention, clean title or complete coverage, and does not imply registry or private banking access.