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ELCDismissedNot stated in the judgment (ELC Appeal at Kisumu)· [2025] KEELC 6887 (KLR)

Odhiambo v Machinji (Suing as the Director of Katiti Builders) (Environment and Land Appeal E024 of 2024) [2025] KEELC 6887 (KLR)

Environment and Land Court
9 October 2025
555 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Kisumu (E. Asati, J) dated 9th October 2025 disposed of a Notice of Motion dated 10th September 2025 by the Appellant, Fredrick Onyango Odhiambo, seeking stay of execution of an eviction ordered by the Maseno Senior Principal Magistrate's Court on 3rd September 2025, as well as leave to settle the decree in instalments. The Applicant argued he was never served with process in the trial court proceedings, was condemned unheard, had filed a Notice of Appeal in the Court of Appeal, and had no other home. The Respondent opposed, contending that a dismissal order is not capable of execution, that there was undue delay, and that no imminent threat of eviction or execution for costs existed since costs were yet to be taxed. The court held that the application related to the trial court's proceedings and orders and could only be entertained before the trial court; it was not directed at this court's judgment of 8th May 2025, which merely dismissed the appeal. Such 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 application was found to lack merit and was dismissed with costs to the Respondent.

Key legal issues

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01

Jurisdiction to grant stay of execution of trial court orders

Holding

The court lacks jurisdiction to stay the trial court's eviction order; such an application belongs to the trial court

Reasoning

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.

p. 2
02

Existence of an order capable of being stayed

Holding

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

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 10th September 2025 is dismissed
  2. 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

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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, "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.