Okendo v Oyuko & 2 others (Environment and Land Appeal E024 of 2022) [2025] KEELC 4845 (KLR)
The bottom line
#A Kisumu court refused to pause a land judgment, ruling you cannot stay a 'negative order' that merely dismissed an appeal and awarded costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the conditions for stay of execution under Order 42 Rule 6 were demonstrated
They were not; there was no executable order and the application was filed after unexplained, unreasonable delay of about nine months
The court observed that the applicant sought to stay his eviction, but the judgment of 6th June 2024 dismissed the appeal and awarded costs only; no eviction order was issued. A negative order incapable of execution cannot be stayed. The application was also filed about nine months after judgment with no explanation, and the grounds for stay were therefore not met.
Whether the incoming firm of advocates was properly on record
No; the appellant was previously represented by Otieno Aluoka & Company Advocates and the new firm, Juliet Dima & Associates, filed the application without the leave required by Order 9 Rule 9
Order 9 Rule 9 provides that after judgment, a change of advocates or an intention to act in person shall not be effected without a court order obtained on notice to all parties or by consent between the outgoing and incoming advocates. The record showed no such compliance, rendering the filing of the application procedurally defective.
Whether stay of proceedings was available
No, because the matter had been finalized and judgment delivered
Stay of proceedings preserves the status quo where hearings are ongoing. Since judgment had been delivered and nothing remained pending before the court, there were no proceedings capable of being stayed. The applicant's real concern was eviction, but no eviction order existed.
Legal principles established
#- A judgment that merely dismisses an appeal and awards costs is a negative order incapable of execution and cannot be the subject of stay of execution under Order 42 Rule 6.
- There can be no stay of proceedings in a matter that has been finalized by judgment.
- After judgment, a change of advocates is ineffective without a court order or consent complying with Order 9 Rule 9 of the Civil Procedure Rules.
Court orders
#- 1.The Notice of Motion dated 25th March, 2025 was dismissed
- 2.Costs awarded to the 1st Respondent
- On appeal from
- Trial court (magistrates' court) - not specified in the text
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules 2010 and sections 3 and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okendo v Oyuko & 2 others (Environment and Land Appeal E024 of 2022) [2025] KEELC 4845 (KLR)", Case Analysis (2025). Not stated in the judgment text provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4845/eng@2025-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.