Odhiambo v Machinji (Suing as the Director of Katiti Builders) (Environment and Land Appeal E024 of 2024) [2025] KEELC 6887 (KLR)
The bottom line
#A Kenyan court ruled you must apply to stay a trial court's eviction order at the trial court itself, not the appellate court.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to grant stay of execution of trial court orders
The court lacks jurisdiction to stay the trial court's eviction order; such an application belongs to the trial court
The substantive prayer sought stay of eviction ordered by the Maseno trial court. Since the application related to the trial court's proceedings and orders, only the trial court could entertain it. The application was not directed at this court's judgment of 8th May 2025, and no execution of that judgment was sought or was imminent.
Existence of an order capable of being stayed
A dismissal order is not capable of execution save for recovery of costs, and no evidence showed that execution for costs had commenced or was imminent
The Respondent argued that a dismissal order is not executable and that costs were yet to be taxed. The court agreed, holding that the judgment of the court merely dismissed the appeal. Since no evidence of imminent execution for costs was placed before the court, there was nothing capable of being stayed.
Legal principles established
#- An application for stay of execution of orders made by a subordinate court must be made and entertained before that trial court, not the appellate court, where the appellate judgment itself is not the subject of the stay
- An order dismissing an appeal is not capable of execution save for recovery of costs
Court orders
#- 1.The Notice of Motion dated 10th September 2025 is dismissed
- 2.Costs to the Respondent
- On appeal from
- Maseno Senior Principal Magistrate's Court (ELC)
- Maseno SPMC ELC NO. E005 of 2022
- Jurisdiction invoked
- Appellate/review jurisdiction over the subordinate court's decision (stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odhiambo v Machinji (Suing as the Director of Katiti Builders) (Environment and Land Appeal E024 of 2024) [2025] KEELC 6887 (KLR)", Case Analysis (2025). Not stated in the judgment (ELC Appeal at Kisumu). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6887/eng@2025-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.