Owiti & another (Suing in their capacity as the officials of Obunge Youth Soccer Community Based Organization) v Imala & 4 others (Environment and Land Appeal E047 of 2025) [2025] KEELC 5063 (KLR)
The bottom line
#The Environment and Land Court in Kisumu refused to stay a judgment that dismissed community claims over disputed Obunga land, but froze all dealings with the property.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss as the cornerstone for granting stay
Appellants failed to demonstrate substantial loss
The Appellants were joined only as interested parties; the positive orders of the lower court were directed at the 4th and 5th Respondents who had not appealed. The Appellants admitted in the lower court that they had stopped using the suit property ten years earlier and had used it only with the Association's permission, and adduced no evidence of current use, so no substantial loss was shown.
Whether the dismissal of the Appellants' counterclaim can be stayed
It cannot; it is a negative order incapable of execution
Relying on Kanwal Sarjit Singh Dhiman v. Keshavji Jivraj Shah and Raymond M. Omboga v. Austine Pyan Maranga, the court held that an order dismissing a counterclaim that does not require a party to do or refrain from doing anything is not capable of execution and therefore not capable of stay.
Reasonable delay
The application was filed without unreasonable delay
The application was brought three days after the judgment of 16th June 2025, satisfying that limb of Order 42 Rule 6(2), though the application nonetheless failed on substantial loss.
Legal principles established
#- A negative order, such as dismissal of a counterclaim with no positive obligation imposed, is incapable of execution and therefore incapable of stay
Court orders
#- 1.The Appellants' Notice of Motion dated 18th June 2025 is dismissed with costs to be in the cause
- 2.The Land Registrar, Kisumu County shall register an inhibition against the register of all that parcel of land known as Kisumu Municipality/Block 4/162 inhibiting the registration of any other or further dealings with the property pending the hearing and determination of the appeal
- On appeal from
- Senior Resident Magistrate's Court, Kisumu
- Kisumu MCELC No. E007 of 2024
- Jurisdiction invoked
- Articles 159 and 162(2)(b) of the Constitution of Kenya 2010; Order 42 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Owiti & another (Suing in their capacity as the officials of Obunge Youth Soccer Community Based Organization) v Imala & 4 others (Environment and Land Appeal E047 of 2025) [2025] KEELC 5063 (KLR)", Case Analysis (2025). Kisumu ELCA (Environment and Land Court Appeal) arising from Kisumu MCELC No. E007 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5063/eng@2025-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.