https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4348

Odek v Mwadi & another (Environment and Land Appeal E018 of 2022) [2026] KEELC 4348 (KLR) (1 July 2026) (Ruling) Neutral citation: [2026] KEELC 4348 (KLR) Republic of Kenya In the Environment and Land Court at Migori Environment and Land Appeal E018 of 2022 FO Nyagaka, J July 1, 2026 Between Edward Odiwuor Odek Appellant and Joseph Onyango Mwadi 1st Respondent Kariero Property 2nd Respondent Ruling 1.The Applicant filed a Notice of Motion dated 14th April 2024 (sic) but the rest of the documents are dates 14th April 2025. This Court He brought it under certificate of urgency. He moved the court on it under sections 1A,1B and 3A of the Civil procedure Act, Order 42 Rule 6 (6) of the Civil Procedure Rules and what he termed as ‘‘all other enabling provisions of the law’’. He sought the orders here below:1.…Spent2.…Spent3.…Spent4.That this Court be pleased to issue an order of temporary interim injunction restraining the Respondents whether by themselves, their agents, servants or persons claiming through them howsoever, from sub dividing, selling, disposing, removing or otherwise causing to be removed the Appellant's/Applicant's name from the suit property, transferring or by other means whatsoever disposing of or otherwise dealing adversely with the suit property known as Kamagambo/Kabuor/7564 or in any other way interfering with the Appellant/Applicant's interests and privileges incidental thereto, pending the hearing and determination of the Applicant's appeal in Kisumu Court of Appeal No. E192 OF 2023- Edward Odiwuor Odek Versus Joseph Onyango Mwagi & Kariero Property.5.That this Court be pleased to issue and order of stay of execution of the Judgment of this court delivered on 13th February 2023 pending the hearing and determination of the Applicants appeal in Kisumu Court of Appeal No. E192 of 2023- Edward Odiwuor Odek versus Joseph Onyango Mwagi & Kariero Property.6.That the costs of this application be provided for. 2.The application is founded on the grounds set out on its face as well the depositions in the supporting affidavit deponed by Edward Odiwour Odek, the Applicant. The basis of the application is that the Applicant was unsuccessful in the subordinate court in Migori CMCC No. 512 of 2018 - Joseph Onyango Mwangi v Edward Odiwour and another. The Court, upon hearing the matter, delivered judgment on 3rd September 2019 as per the annexture E04. 3.He filed an application before the trial court seeking to set aside the ex-parte judgment delivered by the court. He argued in it that he was not represented by counsel hence judgment be set aside. His application was dismissed by the subordinate court on 22nd December 2020. Being dissatisfied with the ruling of the subordinate court, he filed an appeal before this court, being No. E018 of 2022 which was also dismissed in a judgment delivered by this court on 13th February 2023. The Applicant, being dissatisfied by the judgment of this court preferred an appeal at the court of appeal. 4.Further, the Applicant was apprehensive that the effect of the dismissal of the appeal is the freeing and transfer of the suit property, that is, L.R No. Kamagambo/Kubuor/7564, to the 1st respondent pursuant to the judgment of 30th September 2019 wherein the trial court directed that the same be transferred to the name of the 1st respondent. Also, that now the 1st respondent has filed an application that the Executive Officer does sign transfer documents of the same. 5.This application, the Applicant maintained, was likely to be determined before the appeal is concluded. He thus sought an injunction as provided under order 46 Rule 6 (6) of the Civil Procedure Rules so as to prevent the 1st Respondent from interfering with the suit property in the pendency of the appeal. 6.The application was opposed by the 1st Respondent vide a replying affidavit dated 5th May 2025. He deponed that the Applicant filed an application dated 20th April 2024 which is a replica of the instant application. Further, he deponed that the Applicant unconditionally withdrew the application 20th April 2024. As such, he concluded that the instant application is an afterthought and an avenue of reintroducing an already withdrawn application, an abuse of court process and a waste of the court’s judicious time. The Respondent also stated that the instant application was brought in bad faith and the same is aimed at depriving him the benefits of his judgment. He asserted that the Applicant is seeking to reopen litigation that had already been concluded by the fact of the withdrawal of the Applicant’s application dated 20th April 2024. 7.Moreover, the Respondent deponed that this court became functus officio after delivering its ruling dated 13th February 2024. As such, he maintained that the court ought not to get into the jurisdiction of the lower court, considering that the judgment of the lower court has never been challenged. He asserted that the appeal before the high court (should have been court of appeal) does not attack the judgment of the lower court. rather, it seeks to challenge the ruling of this court which sought to reopen a matter; the Applicant did not seek leave to appeal the judgment of the lower court out of time and neither did he seek to stay the said judgment. 8.Finally, the Respondent deponed that the application seeks to stay the execution of a judgment of the lower court that has never been appealed against. He equally maintained that the filing an appeal in itself does not operate as an automatic stay of execution where such stay has not been granted. Submissions 9.The application was canvassed by way of written submissions. The Applicant filed his dated 20th may 2025. He set out one issue for determination, which is, whether the Applicant’s application meets the test set out in law for grant of the grant of an order of temporary injunction. 10.The Applicant relied on Order 42 Rule 6(6) of the Civil procedure rules which provides for grant of temporary injunction pending appeal and stay of execution. He submitted that a court exercising its appellate jurisdiction, when faced with an application under order 42 rule 6 (6), should satisfy itself that the Applicant has an arguable appeal, which does not necessarily mean an appeal that must succeed but one that is not frivolous or idle. Besides, the Applicant submitted that the court should consider whether the appeal would be rendered nugatory if the temporary injunction is not granted. 11.On whether he has an arguable appeal, the Applicant relied on R.F.S. v J.D.S (2013) eKLR where it was held that an appeal is said to the arguable where it raises issues that can be genuinely asserted or where there are divergent legal or factual positions of merit that warrant judicial investigation. He stated that his appeal was arguable because it raises eight grounds, among them, the issue of fair hearing. Accordingly, the Applicant asserted that the appeal is not frivolous but one that would be rendered nugatory should the orders sought not be granted. 12.The Applicant submitted that he is the registered owner of the suit property. he added that he would suffer irreparable harm should the injunction sought not be granted, which would further expose the suit property to sale or transfer to third parties hence rendering his appeal nugatory. The Applicant also added that losing the subject matter of the appeal constitutes loss that cannot be compensated by way of damages, considering the uniqueness of proprietary rights. Reliance was placed on Joseph Siro Mosioma vs. Housing Finance Company of Kenya Limited & 3 Others [2008] eKLR to buttress the latter position. 13.Lastly, the Applicant reiterated his willingness to comply with any conditions hat the court may impose and prayed that the orders sought in his application be granted. 14.The1st Respondent filed his submissions dated 24th February 2026. He identified three issues for determination: whether the Application is bad in law and otherwise an abuse of the court process; whether the orders sought should be granted and, who should pay costs. 15.On whether the instant application is bad in law, the 1st Respondent submitted that the application herein is an abuse of court process. He submitted that the Applicant had filed an application dated 20th April 2024 which is a replica of the instant application. he added that the former application was withdrawn by the Applicant. all these applications, he added, are aimed at frustrating and inconveniencing him since he has incurred costs in defending each of the said applications. he urged the court to find that the instant application amounts to abuse of court process and called for its dismissal. 16.On whether the orders sought should be grated, the 1st Respondent submitted in the negative. He submitted that an appeal does not operate as an automatic stay and relied on Order 42 Rule 6 (2) to outline the considerations that this court should bear in mind determining whether to grant the order of stay of execution pending appeal. Thus, the court must be satisfied that the application for stay is filed without unreasonable delay; the Applicant would suffer substantial loss is the stay order is not granted and the Applicant should give such security as may be ordered by the court for the due performance of the decree or order as may be ultimately binding on him. 17.The 1st Respondent submitted that the Applicant has a habit of filing applications and alter withdrawing them without prosecuting the same. He also submitted that the Applicant seeks to stay the judgment of the court delivered on 13th February 2023 and that there is no reason (s) advanced by the Applicant to account for the two-year delay in filing the application. Further, the 1st Respondent submitted that the Applicant’s intention is to stall the matter and deny him the fruits of his judgment. 18.Moreover, the 1st Respondent submitted that no appeal has been lodged against the judgment of the subordinate court and as such, the court has nothing to examine and determine whether the Applicant has an arguable appeal and whether the appeal would be rendered nugatory should the stay orders not be granted. He submitted that the Applicant filed an appeal before the Court of Appeal in Kisumu challenging the ruling of this court that dismissed an application for review of the judgment of this court and not against the judgment itself. 19.The Applicant also contended that what is sought to be stayed is a negative order since the judgment of the court delivered on 13th February merely dismissed the Applicant’s application and did not require the 1st Respondent to do anything so as the enforce the judgment or order of the court. he submitted that the Applicant had not demonstrated any loss that he would suffer should the stay being sought not be granted and urged the court to dismiss the application. 20.On the issue of substantial loss, reliance was placed on the case of James Wangalwa & Another v Agnes Naliaka Cheseto [2012] eKLR to emphasize that the fact that execution has commenced does not mean substantial loss will occur; the Applicant must demonstrate that execution will create a set of affairs that will negate the very essential of the Applicant as the successful party in the appeal. 21.On the issue of security, the Applicant submitted that the Applicant has not demonstrated readiness to furnish security for the due performance of the decree. He urged the court to balance the rights of the parties herein such that the Applicant furnishes security should execution be stayed. 22.Concerning the injunction sought by the Applicant, the 1st Respondent submitted that the Applicant has not met the threshold established in Giella v Giella vs Cassman Brown (1973) EA 358 and as was reiterated in subsequent decisions including Nguruman Limited vs Jan Bonde Nielsen & 2others CA No.77 of 2012 (2014) eKLR and Mrao Ltd vs First American Bank of Kenya Ltd (2003) eKLR. Issues, Analysis and Determination 23.After considering the application, the response thereto and the rival submissions filed by the parties, the court has settled on the following issues for determination:a.Whether the court has jurisdiction to hear and determine this application, specifically on injunction;b.If the answer to the a) above is in the affirmative, whether the Applicants should be granted the orders sought; and,c.Who should bear the costs of the application. 24.The court of appeal in Owners of the Motor Vessel “Lillian S" v Caltex Oil (Kenya) Ltd (Civil Appeal 50 of 1989) [1989] KECA 48 (KLR) (17 November 1989) (Judgment) emphasized on the centrality if jurisdiction in litigation. The court held that jurisdiction is everything and that a court that is not vested with jurisdiction should not take one more step once the court realizes that it is not clothed with jurisdiction. 25.That said, the instant application was brought under Order 42 Rule 6 (6) which grants the court when sitting its appellate capacity to grant temporary injunctions. However, for an Applicant to befit from this provision, he or she must have initiated the procedure for instituting appeal from a subordinate court or tribunal to this court.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. 26.The issue of jurisdiction becomes important in the instant application, considering the procedural history culminating in the instant application. For the avoidance of doubt, the court finds it necessary to reiterate the same. It is that the 1st Respondent filed a suit against the Applicant before the subordinate court challenging the title to the suit property which is held in the name of the Applicant. The subordinate court delivered an ex-parte judgment in favour of the 1st Respondent on 3rd September 2019. The Applicant was aggrieved by the judgment of the court and filed an application 15th September 2020 seeking to set aside the aforesaid ex-parte judgment. In a ruling delivered on 22nd December 2020, the subordinate court dismissed the Applicant’s application with costs. Still dissatisfied with the ruling of the court, the Applicant moved to this court and filed an appeal against the ruling of the subordinate court dated 22nd December 2020. This court subsequently dismissed the appeal in a judgment delivered on 13th February 2023. The Applicant moved to the court of appeal challenging the judgment this court. In the meantime, he has also approached this court seeking a temporary injunction restraining the 1st Respondent from interfering with the suit property and stay of execution of the judgment of this court dated 13th February 2023. 27.In determining whether this court has jurisdiction to entertain the instant application, the court is alive to the requirement that it can only exercise its jurisdiction under Order 42 Rule 6(6) of the Civil Procedure Rules if it is sitting in its appellate capacity. Suffice to state that the subject matter in question, being an appeal to this court, must have come to it from a subordinate court or Tribunal. Simply put, there must be an appeal pending before this court to be determined in order for this court to issue an injunction pending its determination. 28.In Abdalla v Kadenge & 3 others (Environment & Land Case 203 of 2014) [2022] KEELC 2421 (KLR) (11 May 2022) (Ruling), the court cited Bartholomew Mwanyungu & 3 others v Florence Dean Karimi [2019] eKLR where it was held that this court only has jurisdiction to grant a temporary injunction under Order 42 Rule 6 (6) when sitting in its appellate capacity. The court held that:“12.This is an application for injunction pending appeal brought under Order 42 Rule 6 (6) of the Civil Procedure Rules which provides as follows:Notwithstanding anything contained in sub-rule (1) of this rule the High Court shall have power in 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.”13.The stipulated provision is clear that the court shall have power in exercise of appellate jurisdiction to grant temporary injunction in such terms as it deems just provided that the procedure for instituting an appeal from the subordinate court or tribunal has been complied with.14.This matter was heard and determined in this court and therefore it is not an appeal from the subordinate court. The catch phrase in the provision is “exercise of its appellate jurisdiction” and “an appeal from a subordinate court”. This therefore locks out the Applicant as the court cannot grant the orders of injunction sought for. The Applicant should have moved to the next appellate court to seek for redress.15.In the case of Bartholomew Mwanyungu & 3 others v Florence Dean Karimi [2019] eKLR the court held that:“It should be noted from the above provision of the law, and in particular Order 42 Rule 6(6) that this court has the power to grant injunction only when exercising its appellate jurisdiction. In the instant case, the Court has already rendered its decision and the Applicant has stated that she intends to appeal to the Court of Appeal against the decision of this court given on April 18, 2018. On that basis alone, I find that the court does not have the jurisdiction to entertain the present application and grant the order of injunction sought by the Applicant. This court is no longer exercising its appellate jurisdiction. The Applicant has already filed a Notice of Appeal in the Court of Appeal. Under 5(2)(b) of the Court of Appeal Rules, the Court of Appeal may grant an injunction in civil proceedings where a Notice of Appeal has been lodged in accordance with Rule 75.” (emphasis added)16.I have considered the application together with the submissions by counsel and find that the application lacks merit and is therefore dismissed with costs to the defendants.’’ 29.Turning then to the instant application, I am of the humble view that at this stage of the proceedings this court cannot be said to be having a live matter awaiting a determination by it in its appellate capacity. It has already heard and concluded the appeal. It delivered judgment on the appeal on 13th February 2023 by which it dismissed the appeal, having found no merit in it. That is a period of three years and four and half months ago. The injunction sought does not relate to the already determined appeal but on a subject not before this Court. Surely, from 2019 when judgment was delivered herein up to this date the period of waiting for the Respondent herein to realize the fruits of his judgment is inordinately long. Justice delayed is justice denied, and it seems the applicant is enjoying using the court process to frustrate the Respondent. This court cannot be party to that. 30.While the injunction might be aimed at prohibiting certain actions relating to the suit property the determination as to the ownership thereof is no longer before this court. It has moved to the Court of Appeal, yet the provisions of Order 42 Rule 6(6) of the Civil Procedure Rules address a subject this court is required to determine in its appellate capacity. This court is therefore not vested with jurisdiction to entertain the instant application. The prayer for injunction therefore fails. 31.Regarding the prayer for stay of execution pending appeal, first it is important to note that by its judgment dated 13th February 2023 this Court dismissed the applicant’s appeal. The appeal was against the ruling that sought to set aside the judgment delivered on 3rd September 2019. That is almost seven years ago. 32.The applicant argues that following the dismissal of the appeal herein he filed a Notice of Appeal. He annexed the Notice and Memorandum of Appeal and marked is as EO 7. What happened in the meantime? This can only be borne by and understood from the record. 33.The applicant depones at paragraph 10 of the supporting affidavit that the 1st respondent has now filed an application dated 24th January 2024 seeking to have the Executive Officer trans sign transfer forms and all necessary documents required for the transfer and register of that suit property in the first respondents name here next a copy of the application unmarked it EO6 He depones at paragraph 11 that he has since sought advice and through counsel has been informed that since he has filed a Notice of Appeal and a Record of Appeal then this application is necessary. 34.The issue herein is whether the Applicant has satisfied the requirements for grant of an order for stay of execution pending appeal. The law on stay of execution of judgments or orders where an appeal is preferred from this Court to the Court of Appeal is now well settled. For a court of this level of hierarchy to grant the orders of stay of execution pending appeal, the party seeking such orders must satisfy the court that he has placed himself within the legal requirements of Order 42 Rule 6 of the Civil Procedure Rules. The provision states as follows:“No order for stay of execution shall be made under subrule (1) unless-(a)the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and(b)such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant. 35.This Court is not going to reinvent the wheel on the import and interpretation of this provision. It is alive to the fact that there are a number of decided cases that lay the basis for and expound on the conditions to be satisfied by an Applicant of this nature. In Civil Appeal No.107 of 2015, Masisi Mwita -vs- Damaris Wanjiku Njeri (2016) eKLR, the Court held that:-“The application must meet a criteria set out in precedents and the criteria is best captured in the case of Halal & Another..Vs…Thornton & Turpin Ltd, where the Court of Appeal (Gicheru JA, Chesoni and Cockar Ag. JA) held that:-“The High Court’s discretion to order stay of execution of its Order or Decree is fettered by three conditions, namely; - Sufficient Cause, substantial loss would ensue from a refusal to grant stay, the Applicant must furnish security, the application must be made without unreasonable delay.“In addition, the Applicant must demonstrate that the intended Appeal will be rendered nugatory if stay is not granted as was held in Hassan Guyo Wakalo…Vs…Straman EA Ltd (2013) as follows:-“In addition the Applicant must prove that if the orders sought are not granted and his Appeal eventually succeeds, then the same shall have been rendered nugatory.”These twin principles go hand in hand and failure to prove one dislodges the other” 36.The question that then comes to mind is: has the applicant satisfied the conditions for stay of execution pending appeal? The first one is, whether the application has been brought with or without unreasonable delay. 37.As to whether the Application has been brought without unreasonable delay, this court notes that it was filed on the 15/4/2025. The judgment sought to be stayed was delivered on 3rd September 2019 but the relevant one, which I shall comment on as I conclude the determination of this issue was delivered on 13th February 2023. No similar application as the instant one has ever been brought since 13h February 2023. Thus, the instant Application was filed three years and four months from the date of delivery of the judgment. In addition, the Applicant filed a Notice of Appeal which has been attached to the Affidavit and the original thereof is in the Court file. It was dated 23/09/2023. That was only ten days after the delivery of the judgment. Based on the two steps by the Applicant, I find that he has, for the purposes of this application satisfied the court that there is an appeal in place. I hold so because in terms of Rule 2(2) of the Appellate Jurisdiction Act/ Court of Appeal Rules an ““appeal”, in relation to appeals to the Court, includes an intended appeal;…”. And as stated in Otieno, Ragot & Company Advocates v National Bank of Kenya Limited [2020] eKLR, an appeal is deemed to have been filed once a notice thereof has been filed in the appropriate registry. 38.However, the applicant has NOT satisfied it that the application was filed without unreasonable delay. He has miserably failed to do so. As a matter of fact, the delay is inexplicably long. The applicant is a party sits and waits until the last minute when the respondent has moved the court to realize the fruits of his judgment and then strikes with applications to stop or scuttle the steps being taken. This is an abuse of the process of the court. 39.On the second limb the question is: will the Applicant suffer substantial loss if the orders sought are not granted? To answer this question, this court had to compare the judgment of this court with the prayers sought. The prayers sought in the appeal and which were not granted in favour of the Appellant were, in summary: the ruling and order of the subordinate court be set aside. 40.The applicant averred that he would suffer substantial loss and the appeal here from will be rendered nugatory if the orders of stay of execution was not granted. He stated that the Respondent was likely to execute the decree of the trial court because he had commenced the application process to have the executive officer of the court sign the transfer documents to transfer the property as ordered by the trial court. He annexed a copy of the application in the lower court. 41.I find that the judgment rendered seven years ago has not been set aside. The appeal herein was dismissed. The appeal to the court of appeal is a second one. While the Rules of procedure provide that a second appeal may be used to found an application for stay of execution, my humble view is that the stay sought herein should relate to positive orders this appellate court has issued. I do not by this mean that there cannot be an order of stay of execution of the orders of another but subordinate court on a second appeal. Far from it. I mean that the circumstances herein give a diametrically different situation which does not favour the grant of the orders sought. Herein this court issued a negative order which follows issuance of another negative order by the trial court. 42.The onus of proving a fact lies on the person alleging the existence of that fact. In the instant application, it is upon the Applicant to prove the substantial loss he would suffer if the court declines to issue the orders sought. As things stand, he is not on the disputed land. Furthermore, the transfer to be effected if so shall be through a lawful process which stemmed from a contract never effected. Again, in the instant appeal, the Court only dismissed the appeal. In my view, the order issued is negative. In Bungoma High Court Misc Application No 42 of 2011 - James Wangalwa & Another vs. Agnes Naliaka Cheseto that:“The applicant must establish other factors which show that the execution will create a state of affairs that will irreparably affect or negate the very essential core of the Applicant as the successful party in the appeal. This is what substantial loss would entail.’’ 43.The applicant has not demonstrated to this court the nature of the substantial loss he would suffer if stay of execution is not granted. This limb of the Application fails. Thus, I need not consider whether or not the Applicant has offered security in the event of a stay of execution being granted. 44.On the issue of costs, the same shall be borne by the Applicant but only to or in favour of the 1st Respondent. 45.Orders accordingly. RULING DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 1ST DAY OF JULY 2026.HON DR. IUR NYAGAKA,JUDGEIn the presence of,Ms. Ogutu for Mboya for the 1st RespondentLinda Agatha for the Appellant2nd Respondent Absent (never participated from lower court up to appeal stage)