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ELCDismissedNot stated in the judgment extract (Notice of Motion dated 19/09/2024)· [2025] KEELC 4104 (KLR)

Okech (Suing as the Legal Representative to the Estate of Boaz Okech Okech (alias Okech Okech Owuor (Deceased)) v Ombago (Sued in his Individual Capacity and as Legal Representative of the Estate of Ombago Ogongo (alias Alex Ombago Ogongo (Deceased)) & another (Environment & Land Case E002 of 2023) [2025] KEELC 4104 (KLR)

Environment and Land Court
30 May 2025
2,928 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court in Siaya dismissed a request to pause a land case pending appeal, confirming such stays need exceptional circumstances.

What this practically means

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Executive summary

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The Plaintiff/Applicant, Onyango Okech, moved the court by Notice of Motion dated 19/09/2024 seeking a stay of proceedings pending the hearing and determination of Civil Appeal No. E 183 of 2024 at the Court of Appeal, Kisumu. The appeal challenges the court's ruling dismissing the applicant's application to strike out the defendant's counterclaim. The applicant argued the appeal was arguable and would be rendered nugatory if the suit proceeded, since the subject matter was ancestral land incapable of adequate monetary compensation. The respondent opposed, contending the application was misconceived, a delay tactic, filed seven months after the ruling without explanation, and that the appeal was filed out of time without leave. The court framed the single issue of whether the applicant had met the threshold for stay of proceedings under Order 42 Rule 6(1). Applying Global Tours & Travels and Kenya Wildlife Service v James Mutembei, the court held that stay of proceedings is discretionary, to be exercised sparingly and only in exceptional circumstances. It declined to assess the arguability of the appeal since the impugned ruling was its own decision. Critically, it held that the substantial loss criteria in Order 42 Rule 6(2) apply solely to stay of execution, not stay of proceedings, following Makena v Nalwa. Finding no special circumstances, and noting the ruling was interlocutory with all issues still open at the main suit, the court dismissed the application with costs to the respondent, preferring a single comprehensive determination over piecemeal litigation.

Key legal issues

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01

Whether the Applicant met the threshold for stay of proceedings pending appeal

Holding

The application was dismissed; no justification or exceptional circumstances were demonstrated warranting a stay of proceedings

Reasoning

The court found the application rested largely on the merits of the appeal and the fate of a consent order, matters not appropriate for determination at the interlocutory stage. Since the ruling appealed was not a final determination and all issues remained alive for the main suit, the preferable course was to proceed to full hearing, avoiding piecemeal determinations, with any appeal thereafter disposed of under one roof by the Court of Appeal.

p. 4
02

Whether the substantial loss requirement under Order 42 Rule 6(2) applies to stay of proceedings

Holding

No; the substantial loss criteria attach only to stay of execution, not to stay of proceedings

Reasoning

Reading Order 42 Rule 6 as a whole, the court distinguished the two limbs of the rule: stay of execution and stay of proceedings. The conditions in sub-rule (2), including demonstration of substantial loss, apply only to stay of execution. The applicant's submissions on non-pecuniary loss arising from the alleged loss of ancestral land therefore could not sustain an application for stay of proceedings.

p. 5
03

Whether the validity of the appeal filed at the Court of Appeal could be determined by this court

Holding

No; questions of whether the appeal was properly filed fall within the jurisdiction of the Court of Appeal

Reasoning

The respondent argued the appeal was filed out of time without leave and was void ab initio. The court held that since the memorandum of appeal and attendant documents were already before the Court of Appeal, the propriety of the appeal was a matter for that court, not the trial court, and declined to make any finding on the issue.

p. 5

Legal principles established

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  • Stay of proceedings is discretionary and must be exercised judiciously in the interests of justice, with a high threshold requiring demonstration of exceptional circumstances
  • The substantial loss criteria under Order 42 Rule 6(2) apply solely to stay of execution, not stay of proceedings
  • A court whose decision is under appeal cannot comment on the arguability of the appeal against its own ruling

Court orders

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  1. 1.The application dated 19/09/2024 seeking stay of proceedings pending appeal is dismissed
  2. 2.Costs of the application awarded to the Respondent
Jurisdiction invoked
Sections 1A, 1B, 3A of the Civil Procedure Act and Order 42 Rule 6(1) 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, "Okech (Suing as the Legal Representative to the Estate of Boaz Okech Okech (alias Okech Okech Owuor (Deceased)) v Ombago (Sued in his Individual Capacity and as Legal Representative of the Estate of Ombago Ogongo (alias Alex Ombago Ogongo (Deceased)) & another (Environment & Land Case E002 of 2023) [2025] KEELC 4104 (KLR)", Case Analysis (2025). Not stated in the judgment extract (Notice of Motion dated 19/09/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4104/eng@2025-05-30

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