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ELCDismissedNot stated in the excerpt

Kisoso v Kimamet & Totona (Suing as the Legal Representatives of Kiporot Ole Totona alias Singo Arap Totona - Deceased) & 3 others (Environment & Land Case 267 of 2017) [2025] KEELC 3928 (KLR)

Environment and Land Court
22 May 2025
2,422 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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Filing a Notice of Appeal in Kenya does not stop a case automatically or strip the trial court of power to hear stay applications.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nakuru (M. A. Odeny, J) delivered on 22nd May 2025 on the 1st, 2nd and 3rd Defendants' Notice of Preliminary Objection dated 25th November 2024. The Defendants argued that the Plaintiff's application for stay of proceedings (ahead of a de novo hearing) was misconceived because, having filed a Notice of Appeal against the ruling of 21st February 2024 setting aside the judgment of 19th January 2023, the Plaintiff ought to have sought stay in the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules; the ELC was therefore functus officio and hearing the application would contravene judicial hierarchy. The Plaintiff submitted the objection was baseless. The court confined itself to the functus officio point, noting the objection was wordy and mixed law with facts, contrary to Oraro v Mbaja. Applying the functus officio doctrine as expounded in Raila Odinga v IEBC (2013), the court held that because the matter was ordered to proceed de novo it remains pending before the ELC, and a Notice of Appeal is not an automatic stay; the Plaintiff could properly pursue stay of proceedings in this court. The objection was found to lack merit and was dismissed with costs. The court urged the parties to fast-track the old matter and consider alternative dispute resolution, and directed the Applicant to fix the stay of proceedings application within 30 days.

Questions the Court framed

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

  1. 1.Whether the Notice of Preliminary Objection dated 25th November, 2024 is merited, specifically whether this court is functus officio and whether the Court of Appeal is the proper forum for an application for stay of proceedings

Key legal issues

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01

Whether the ELC is functus officio once an appeal is lodged in the Court of Appeal

Holding

The court is not functus officio; the de novo hearing order left the matter pending before the ELC and the plaintiff may pursue a stay application either here or in the Court of Appeal

Reasoning

The functus officio doctrine embodies finality: a decision-maker may exercise adjudicative powers only once in relation to the same matter. Here the 19th January 2023 judgment was set aside and the matter ordered to proceed de novo, so nothing final is being re-opened. A Notice of Appeal does not automatically stay proceedings; the plaintiff was entitled to apply to this court for stay of proceedings pending the appeal, and doing so does not contravene judicial hierarchy.

p. 5
02

Whether the notice of preliminary objection was properly framed

Holding

The objection was defective as it was wordy and blended law with facts and submissions

Reasoning

The court noted the notice was verbose, resembling submissions with authorities, and mixed the preliminary objection with the application. Relying on Oraro v Mbaja, a true preliminary objection must be a pure point of law not blurred with contested factual details. The court confined itself to the functus officio point.

p. 4

Legal principles established

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  • Filing a Notice of Appeal does not operate as an automatic stay of proceedings or execution, and does not divest the trial court of jurisdiction to hear an application for stay of proceedings
  • A preliminary objection must raise pure points of law and must not be blurred with facts requiring evidence

Court orders

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  1. 1.The Notice of Preliminary Objection dated 25th November, 2024 is dismissed with costs
  2. 2.The Applicant to fix the application for stay of proceedings within 30 days from the date of the ruling

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Not expressly stated; Environment and Land Court exercising original jurisdiction over the suit

Relief refused

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Preliminary objection that the court is functus officio and that the stay application should be filed in the Court of Appeal

The matter is still pending before this court having been ordered to be heard de novo; filing a Notice of Appeal does not divest the court of jurisdiction and the grant of stay of proceedings does not contravene judicial hierarchy

p. 5

Costs

Preliminary objection dismissed with costs (to the Plaintiff)

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.

I have considered the preliminary objection, the submissions by counsel, and find that the same lacks merit, and is therefore dismissed with costs.
p. 5Disposition - dismissal of the preliminary objection
The Applicant to fix the application for stay of proceedings within 30 days from the date of this ruling.
p. 5Final orders - timelines for the stay application
It would therefore be procedurally incorrect to find that this court is functus oficio because the Plaintifi has filed a Notice of Appeal in the Court of Appeal.
p. 5Functus officio and effect of a Notice of Appeal
The fact of filing a Notice of Appeal is not an automatic stay of execution or stay of proceedings.
p. 5Effect of notice of appeal

Issues in the judgment

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minor

The notice of preliminary objection and the ruling alternate inconsistently between 'Plaintiff' and 'Defendants/Respondents' as the party who filed the Notice of Appeal/stay application; the judgment elsewhere refers to 'the Applicant' as the plaintiff

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, "Kisoso v Kimamet & Totona (Suing as the Legal Representatives of Kiporot Ole Totona alias Singo Arap Totona - Deceased) & 3 others (Environment & Land Case 267 of 2017) [2025] KEELC 3928 (KLR)", Case Analysis (2025). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3928/eng@2025-05-22

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