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ELCDismissedBusia ELC Case No 139 of 2013 (O.S)· [2025] KEELC 625 (KLR)

Odhiambo v Onyango; Anyande & 9 others (Interested Parties) (Environment & Land Case 139 of 2013) [2025] KEELC 625 (KLR)

Environment and Land Court
18 February 2025
1,833 words in judgment
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The bottom line

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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

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Executive summary

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The plaintiff, Ernest Odhiambo, in Busia ELC Case No 139 of 2013 (O.S) concerning land parcel Bunyala/Mudembi/1735, moved the Court by Notice of Motion dated 6th February 2024 under Section 3A of the Civil Procedure Act and Order 51 of the Civil Procedure Rules, seeking stay of the orders issued in a ruling of 8th November 2023 by which the judge enjoined nine persons occupying the suit land as interested parties, and of the proceedings, pending his appeal, Kisumu Court of Appeal Civil Appeal No E306 of 2023. The defendant opposed, contending the motion was an abuse of process and that the court, being functus officio, could not stay its own orders and that the application lay in the Court of Appeal. The interested parties filed no response despite service. The court first held it was not functus officio, since the power to stay its own orders is vested in both the trial court and the Court of Appeal. It found the substantive remedy governed by Order 42 Rule 6(1) and (2) of the Civil Procedure Rules, that stay of proceedings is a discretionary remedy turning on the interest of justice, and that it could not gauge the merits of an appeal from its own ruling as that would usurp the Court of Appeal's jurisdiction. The plaintiff showed no substantial loss beyond delay, compensable by costs; joining interested parties serves fair hearing under Article 50; and a further stay would delay a suit filed in 2006 contrary to Article 159(2)(b) and Section 1A. The motion was dismissed with each party bearing their own costs, and the part-heard suit was fixed for full-day hearing on 14th July 2025.

Key legal issues

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01

Whether the trial court is functus officio regarding stay of its own orders

Holding

The court held it is not functus officio; it has concurrent jurisdiction with the Court of Appeal to stay its orders pending appeal.

Reasoning

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.

p. 2
02

Whether the merits of the intended appeal may be interrogated by the trial court in a stay application

Holding

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.

Reasoning

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.

p. 4
03

Whether substantial loss and the interest of justice favoured a stay

Holding

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.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 1.The Notice of Motion is dismissed.
  2. 2.Each party to meet their own costs.
  3. 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.

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 1A
  • Civil Procedure RulesOrder 51
  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)
  • Constitution of KenyaArticle 50
  • Constitution of KenyaArticle 159(2)(b)
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

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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, "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.