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ELCPartially AllowedMELC Appeal (Butere PMCC E 001 of 2025)· [2025] KEELC 6522 (KLR)

Omulama v Shimeka & another (Environment and Land Appeal E005 of 2025) [2025] KEELC 6522 (KLR)

Environment and Land Court
30 September 2025
ANA. Nyukuri
2,004 words in judgment
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The bottom line

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The Environment and Land Court in Kakamega paused an injunction evicting a long-standing land occupier, but refused to stop the main case from continuing.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kakamega (Nyukuri J) on a notice of motion dated 23rd June 2025 by the appellant in an appeal against a ruling of the Principal Magistrate at Butere in MELC No. E 001 of 2025. The applicant, who has occupied the suit land since 1960 and buried his parents there, was sued for eviction and injunction by respondents who acquired the land through a contested succession. The trial court granted interlocutory injunctions against him, after which he was fenced in and blocked from his home. The application, unopposed and unsupported by submissions, sought stay of the lower court proceedings and stay of execution of the ruling. On stay of proceedings, the court held that the threshold is high and stringent, that proceedings must be determined expeditiously, and that the applicant sought an indefinite stay without demonstrating manifest injustice; that prayer was declined. On stay of execution, the court applied the substantial loss, delay and security requirements of Order 42 Rule 6, and reasoned that granting eviction-type final relief interlocutorily, before evidence is tested, violates Article 50's right to be heard. Noting the applicant's long occupation was undisputed, the court allowed the application only to the extent of staying the injunction granted against him on 10th June 2025 pending determination of the appeal. No costs order was made.

Key legal issues

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01

Stay of proceedings pending appeal

Holding

Refused; indefinite stay not justified and no manifest injustice demonstrated

Reasoning

The court held the threshold for stay of proceedings is higher than for stay of execution. The applicant sought an indefinite stay not tied to any future event, meaning the lower court case would never be heard. He gave no justification and did not demonstrate injustice or that the interests of justice required halting the proceedings.

p. 3
02

Stay of execution of interlocutory injunction

Holding

Granted; the interlocutory injunction of 10th June 2025 stayed pending appeal

Reasoning

The applicant resides on the suit land since 1960 with his family, and no reply denied these facts. Both parties accepted his occupation. Eviction orders obtained interlocutorily, before evidence is tested by cross-examination, violate Article 50's right to be heard. The applicant therefore showed substantial loss warranting stay of the injunction.

p. 4

Legal principles established

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  • Before judgment, a plaintiff should not ordinarily obtain the final orders sought in the plaint through an interlocutory application, as this violates the right to be heard under Article 50
  • The threshold for stay of proceedings is higher than for stay of execution; manifest injustice must be shown

Court orders

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  1. 1.The order of injunction made against the applicant on 10th June 2025 is stayed pending hearing and determination of the appeal
  2. 2.Prayer for stay of proceedings in Butere MELC E 001 of 2025 declined
On appeal from
Principal Magistrate's Court, Butere
MELC NO. E 001 of 2025
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay pending appeal)

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, "Omulama v Shimeka & another (Environment and Land Appeal E005 of 2025) [2025] KEELC 6522 (KLR)", Case Analysis (2025). MELC Appeal (Butere PMCC E 001 of 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6522/eng@2025-09-30

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