Odhiambo v Onyango; Anyande & 9 others (Interested Parties) (Environment & Land Case 139 of 2013) [2025] KEELC 625 (KLR)
The bottom line
#The Environment and Land Court in Busia refused to pause a nearly 20-year-old land case, ruling that delay alone isn't enough to justify a stay pending appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether the trial court is functus officio regarding stay of its own orders
The court held it is not functus officio; it has concurrent jurisdiction with the Court of Appeal to stay its orders pending appeal.
The defendant argued the court had no jurisdiction to stay its own orders. The court rejected this, finding the power to stay its orders is vested both in the trial court and the Court of Appeal, notwithstanding that the substantive stay remedy is governed by Order 42 Rule 6 of the Civil Procedure Rules and that Section 3A donates inherent jurisdiction.
Whether the merits of the intended appeal may be interrogated by the trial court in a stay application
The court held that where the appeal is from its own ruling, it cannot assess the merits of the intended appeal; that is for the Court of Appeal.
The plaintiff asked the court to weigh the five grounds in the memorandum of appeal to establish that the appeal raised weighty and triable issues. The court declined, reasoning that doing so would usurp the appellate jurisdiction, though it could consider the strength of an appeal pending before it from a subordinate court.
Whether substantial loss and the interest of justice favoured a stay
The plaintiff demonstrated no substantial loss beyond delay, which is compensable in costs; the joinder of interested parties accords with Article 50 and a stay would delay a suit approaching twenty years old, contrary to Article 159(2)(b) and Section 1A of the Civil Procedure Act.
Apart from asserting the appeal raised triable issues, the plaintiff did not state what prejudice or substantial loss he would suffer if stay was declined. The court found parties with an interest in the subject matter should be brought on board for fair hearing, and that expeditious disposal outweighed further delay.
Legal principles established
#- The jurisdiction to stay a trial court's own orders pending appeal is vested in both the trial court and the Court of Appeal; the trial court is not functus officio.
- A trial court whose ruling is the subject of a pending appeal cannot delve into the merits of that intended appeal when considering a stay, as that would usurp the appellate court's jurisdiction.
- Stay of proceedings is a discretionary remedy to be determined on the peculiar circumstances of each case, guided by the interest of justice.
Court orders
#- 1.The Notice of Motion is dismissed.
- 2.Each party to meet their own costs.
- 3.The suit, filed in 2006, to be heard for the whole day on 14th July 2025 unless the Court is served with orders staying the proceedings; parties to bring all their witnesses on that day.
- Jurisdiction invoked
- Section 3A of the Civil Procedure Act and Order 51 of the Civil Procedure Rules; Order 42 Rule 6(1) and (2) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odhiambo v Onyango; Anyande & 9 others (Interested Parties) (Environment & Land Case 139 of 2013) [2025] KEELC 625 (KLR)", Case Analysis (2025). Busia ELC Case No 139 of 2013 (O.S). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/625/eng@2025-02-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.