Okode v Ounda (Environment and Land Case 2 of 2020) [2025] KEELC 6436 (KLR)
The bottom line
#The Kisumu Environment and Land Court paused a family's eviction pending appeal, but only after the Defendant posts Kshs. 300,000 security within 45 days.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to grant an injunction pending appeal
The court lacks jurisdiction; only the Court of Appeal may grant such an injunction under Rule 5(2)(b) of the Court of Appeal Rules 2022
Order 42 Rule 6(6) empowers the High Court in its appellate jurisdiction to grant temporary injunctions, but this power attaches to appeals before it, not appeals pending before the Court of Appeal. Only the Court of Appeal can assess whether an appeal is arguable and would be rendered nugatory. This court cannot make that assessment.
Stay of execution under Order 42 Rule 6(1) and (2)
Stay granted conditionally because the Defendant would suffer substantial loss if evicted before his appeal is heard
The Defendant resides with his home on the suit property and was ordered to vacate within 120 days. Forcible eviction before the appeal is determined would cause irreparable loss if the appeal succeeds. The court has a duty to preserve the subject matter and status quo to protect the right of appeal, while protecting the Plaintiff through conditions given the possibility the appeal may fail.
Legal principles established
#- A trial court cannot grant an injunction pending an appeal before the Court of Appeal; such orders fall within the exclusive jurisdiction of the Court of Appeal under Rule 5(2)(b)
- Substantial loss is the cornerstone for granting a stay of execution, and where the applicant's home stands on the suit land, eviction pending appeal would constitute substantial loss warranting a conditional stay
Court orders
#- 1.The limb of the application seeking an injunction pending appeal before the Court of Appeal is refused for lack of jurisdiction
- 2.Execution of the orders made on 13th February 2025 for the Defendant to vacate Kisumu/Kadero Got Nyabondo/1493 within 120 days, failing which he would be forcibly evicted, and for the Defendant to pay the costs of the suit and counterclaim, is stayed pending the hearing and determination of the Defendant's appeal to the Court of Appeal
- 3.The Defendant shall deposit Kshs. 300,000/- in a joint interest-earning bank account in the names of the advocates on record for the parties as security within 45 days, in default of which the stay shall automatically lapse without further reference to the court
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 3B of the Civil Procedure Act, Order 40 and Order 42 of the Civil Procedure Rules and Sections 3 and 13(7)(a) of the Environment and Land Court Act 2011; Order 42 Rule 6 of the Civil Procedure Rules for stay pending appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okode v Ounda (Environment and Land Case 2 of 2020) [2025] KEELC 6436 (KLR)", Case Analysis (2025). Not stated in the excerpt (suit transferred from High Court to Environment and Land Court on 4th November 2019; originally filed 8th February 2016). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6436/eng@2025-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.