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)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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
#Whether the ELC is functus officio once an appeal is lodged in the Court of Appeal
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
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.
Whether the notice of preliminary objection was properly framed
The objection was defective as it was wordy and blended law with facts and submissions
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.
Legal principles established
#- 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
#- 1.The Notice of Preliminary Objection dated 25th November, 2024 is dismissed with costs
- 2.The Applicant to fix the application for stay of proceedings within 30 days from the date of the ruling
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Not expressly stated; Environment and Land Court exercising original jurisdiction over the suit
Relief refused
#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
Costs
Preliminary objection dismissed with costs (to the Plaintiff)
Quotable passages
#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.
The Applicant to fix the application for stay of proceedings within 30 days from the date of this ruling.
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.
The fact of filing a Notice of Appeal is not an automatic stay of execution or stay of proceedings.
Issues in the judgment
#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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.