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Case Brief · caselaw.co.ke
Court of AppealStruck OutCivil Appeal (Application) E521 of 2026

Wasianju v Odulah

Court of Appeal
25 September 2026
1,020 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal struck out a stay application because the notice of appeal on file targeted the wrong decision, so no competent appeal existed.

What this practically means

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Executive summary

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The applicant, Titus Wanyonyi Wasianju, moved the Court of Appeal at Kakamega by Notice of Motion dated 26th July 2026 under Rule 5(2)(b) of the Court of Appeal Rules, seeking a temporary injunction restraining Fredrick Kigwa Odulah from harvesting, selling or disposing of crops on land parcel L.R No. Bungoma/Kiminini/1, from interfering with his quiet possession, and an order that crop proceeds be deposited into a joint interest-earning account, pending the hearing of an appeal from the judgment of the Environment and Land Court at Bungoma (E. C. Cherono J) delivered on 23rd May 2024, which granted the respondent adverse possession of 2 acres of land registered in the applicant's name. The respondent opposed, contending that no notice of appeal, memorandum or record of appeal had been served or filed against the judgment, so no competent appeal was pending. The Court identified a preliminary jurisdictional issue: a notice of appeal against the decision sought to be stayed is a condition precedent to Rule 5(2)(b) jurisdiction. On perusal, the notice of appeal dated 23rd October 2024 targeted a ruling of 19th September 2024, not the judgment of 23rd May 2024. Holding that it must 'down its tools' absent a notice of appeal against that judgment, the Court found the application incompetent, struck it out, and awarded costs to the respondent. The merits of arguability and nugatory-ness were not reached.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether there is a competent appeal pending upon which the Court can grant injunction/stay orders under Rule 5(2)(b)
  2. 2.Whether a notice of appeal against the judgment of 23rd May 2024 was lodged as a condition precedent to the Court's jurisdiction

Key legal issues

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01

Jurisdiction under Rule 5(2)(b) in the absence of a notice of appeal against the decision sought to be stayed

Holding

The Court lacks jurisdiction to grant a stay or injunction under Rule 5(2)(b) where no notice of appeal has been lodged against the very decision sought to be stayed; the notice on record must target that decision.

Reasoning

The Court noted that Rule 5(2)(b) jurisdiction presupposes an existing appeal or a manifested intention to appeal via lodgment of a notice of appeal. On perusal, the notice of appeal dated 23rd October 2024 sought to appeal a ruling delivered on 19th September 2024, not the judgment of 23rd May 2024 granting the respondent adverse possession. The application was therefore incompetent and was struck out with costs.

p. 2

Legal principles established

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  • A notice of appeal from the decision sought to be stayed is a condition precedent to the exercise of the Court of Appeal's jurisdiction under Rule 5(2)(b); without a notice of appeal against the specific decision, the Court has no jurisdiction to grant orders.

Court orders

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  1. 1.The Notice of Motion dated 26th July 2026 is struck out with costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

majority

Wrote the judgment

majority

Wrote the judgment

On appeal from
Environment and Land Court at Bungoma
Bungoma ELC Case No. 7 of 2019
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Temporary injunction restraining the respondent from harvesting, cutting, selling or disposing of crops, entering upon or dealing with land parcel L.R No. Bungoma/Kiminini/1, and an order to deposit crop proceeds into a joint interest-earning account

The application was not competently before the Court because the only notice of appeal on record challenged a ruling of 19th September 2024, not the judgment of 23rd May 2024 sought to be appealed

p. 2

Costs

Costs of the application to the respondent (Fredrick)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

It is notable in this regard that a notice of appeal from the decision sought to be stayed is a condition precedent for the exercise of this Court’s jurisdiction under Rule 5(2)(b) of the Court of Appeal Rules.
p. 2Condition precedent for Rule 5(2)(b) jurisdiction
We must therefore down our tools in the absence of a Notice of Appeal appealing the said judgment.
p. 2Court declines jurisdiction where no competent appeal is pending
We accordingly nd that the Notice of Motion dated 26th July 2026 is not competently before us, and it is hereby struck out with costs to the respondent (Fredrick).
p. 2Final orders - striking out of the application

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Wasianju v Odulah", Case Analysis (2026). Civil Appeal (Application) E521 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2072/eng@2026-09-25

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.