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ELCDismissedNot stated in the judgment· [2025] KEELC 1356 (KLR)

Nyakeno & another (Suing as the administrators & legal representatives of the Estate of Margaret Odoyo Nyakeno - Deceased) v Nyidha (Environment and Land Appeal E110 of 2024) [2025] KEELC 1356 (KLR)

Environment and Land Court at Kisumu (court not expressly named in the judgment; land dispute before a Judge at Kisumu)
20 March 2025
753 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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A Kisumu land court refused to re-open a blocked access road during an ongoing appeal, because that would decide the appeal before it was heard.

What this practically means

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Executive summary

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This ruling of E. Asati, J, dated and signed at Kisumu and read virtually on 20th March 2025, determines a Notice of Motion dated 13th January 2025 brought under sections 1A, 3, 3A and 80 of the Civil Procedure Act and Order 42 Rule 6 and Order 51 Rules 1, 3 and 4 of the Civil Procedure Rules. Of the twelve prayers, only prayers 4, 7, 10, 11 and 12 were outstanding, the interim orders having been spent. The Applicants, who are Appellants against a trial court decision, sought an order directing that the access road to land parcels Kisumu/Kogony/5551 and 5550 be opened pending hearing and determination of the appeal, an order that the OCS Kochung Police Post enforce the opening, and judgment directing the Respondent to re-open the road. The Respondent opposed, relying on Kenya Breweries Ltd v Washington Okeyo and Giella v Cassman Brown, arguing that a mandatory interlocutory injunction requires a higher degree of proof, that the road was found by the trial court to have been illegally created and was ordered closed and deleted from the map, and that granting the prayers would amount to determining the appeal at the interlocutory stage. The court held that the appeal itself seeks re-opening of the road, so granting the application would determine the appeal before hearing it; prayer 11 sought final orders unavailable on a motion; and there was in fact no prayer for stay of execution. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Whether an interlocutory order re-opening the road pending appeal could issue

Holding

The application fails because the relief sought mirrors the substantive relief in the appeal; granting it would pre-empt and determine the appeal before hearing

Reasoning

The trial court had found the road illegally created and ordered its closure, and those orders were executed. The appeal challenges that decision and seeks re-opening of the road. An interlocutory order re-opening the road would grant the very relief the appeal seeks, effectively deciding the appeal at the interlocutory stage. Prayer 11 in particular sought judgment, which is a final remedy unavailable on a motion.

p. 3
02

Whether a stay of execution pending appeal was available

Holding

No stay of execution was sought in the application notwithstanding counsel's submissions

Reasoning

Although counsel for the Applicant described the application as seeking stay of execution pending appeal, the court found no such prayer among the outstanding prayers (4, 7, 10, 11 and 12). The court corrected the mischaracterisation and dealt with the substance of the prayers, which was re-opening of the road and police enforcement.

p. 2
03

Whether the mandatory interlocutory injunction threshold was met

Holding

The Respondent argued the higher degree of proof for a mandatory interlocutory injunction was not met; the court found no prima facie demonstration and dismissed the application

Reasoning

The Respondent relied on Kenya Breweries Ltd v Washington Okeyo and Giella v Cassman Brown, submitting that a mandatory interlocutory injunction requires a higher degree of proof and that no prima facie case was demonstrated. The court also noted the balance of convenience favoured the Respondent since the road had been deleted by court order.

p. 2

Legal principles established

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  • Interlocutory relief that would effectively grant the substantive relief sought in the appeal cannot be given, as it would determine the appeal before it is heard
  • Final orders (judgment) cannot be granted on an interlocutory application

Court orders

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  1. 1.The application dated 13th January, 2025 is dismissed
  2. 2.Costs to the Respondent
On appeal from
Trial court (name not stated)
Jurisdiction invoked
Sections 1A, 3, 3A and 80 of the Civil Procedure Act; Order 42 Rule 6 and Order 51 Rule 1, 3 and 4 of the Civil Procedure Rules (arising from an appeal against the decision of the trial court)

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, "Nyakeno & another (Suing as the administrators & legal representatives of the Estate of Margaret Odoyo Nyakeno - Deceased) v Nyidha (Environment and Land Appeal E110 of 2024) [2025] KEELC 1356 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1356/eng@2025-03-20

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