Odhiambo v Ndiri & 2 others (Land Case 4 of 2023) [2025] KEELC 4779 (KLR)
The bottom line
#A Siaya court dismissed a 33-year land dispute litigant's stay application, ruling you cannot repeatedly ask the same court to block execution of a final judgment.
What this practically means
#Executive summary
#Key legal issues
#Whether Order 9 Rule 9 non-compliance warrants striking out a responding affidavit
No. The purpose of Order 9 Rule 9 is to safeguard the outgoing advocate's interests, not to serve as a technicality to strike out affidavits, and the consent had since been filed.
The court examined the intent behind Order 9, holding it protects a lawyer who has completed proceedings, ensuring outstanding issues are resolved while the lawyer retains control. Relying on Tobias M. Wafubwa v Ben Butali, the court found no prejudice and noted striking out is not a prescribed consequence, so Article 159(2)(d) required substantive justice over technicality.
Whether a Notice of Appeal constitutes an appeal for stay purposes before this court
No. A Notice of Appeal is deemed an appeal only for stay applications in the Court of Appeal; no memorandum of appeal having been filed, there is no appeal that could be rendered nugatory.
Applying Multi Choice (Kenya) Limited v Wananchi Group, the court held the notice-of-appeal-as-appeal fiction applies only to Court of Appeal stay jurisdiction. Since the stay was sought from the court that issued the orders and no memorandum of appeal existed, there was nothing before the court on which to assess arguability, and the application failed on this basis alone.
Whether the application to stay the 2006 decree is res judicata
Yes. Prior applications for stay, injunction and restraint against execution of the 2006 decree had been dismissed, so the invitation could not be revisited.
Reviewing prior rulings (17/3/2023 injunction dismissal; 11/2/2015 stay application dismissed; 19/01/2022 restraint application dismissed), none controverted by the applicant, the court held repeated attempts to stay the same decree are res judicata and may only be revisited on appeal to the Court of Appeal; on this basis it declined jurisdiction.
Whether special circumstances justified a stay despite delay and absence of substantial loss
No. After 33 years the decree holder has been denied the fruits of judgment; substantial loss was not demonstrated and the delay of about four months was unexplained.
The court applied Butt v Rent Restriction Tribunal and related authorities, noting execution alone is not substantial loss, the application came about four months late, and justice requires regard to the successful party's interest. Invoking Machira v East African Standard, it held allowing a stay would be a travesty of justice.
Legal principles established
#- A Notice of Appeal is treated as an appeal only for the limited purpose of enabling a stay application in the Court of Appeal, not before the trial court
- Execution itself does not amount to substantial loss
- A first stay of a final decree cannot be revisited in the same court; it is res judicata and can only be pursued on appeal
- A successful party is entitled to the fruits of his judgment when stay is considered
Court orders
#- 1.The court declined the invitation to strike out the respondent's affidavit sworn on 10th March 2025
- 2.The application dated 28th February 2025 be and is hereby dismissed
- 3.Each party to bear their own costs
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules; court moved as the court that issued the impugned orders
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odhiambo v Ndiri & 2 others (Land Case 4 of 2023) [2025] KEELC 4779 (KLR)", Case Analysis (2025). Kisumu High Court Case No. 197 of 1992 (as referenced; Notice of Motion dated 28th February 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4779/eng@2025-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.