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ELCDismissedNot stated in the excerpt (ELC suit, Kisumu; application dated 25th March 2025)· [2025] KEELC 7123 (KLR)

Odongo v Olondo & 3 others (Environment and Land Case Civil Suit 108 of 2013) [2025] KEELC 7123 (KLR)

Environment and Land Court
16 October 2025
SOS. OKONG'O
1,880 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Kisumu Environment and Land Court refused to pause enforcement of its judgment because the defendant showed no real harm, since he was never on the land anyway.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kisumu (S. Okong'o, J) deals with the 2nd defendant's Notice of Motion dated 25th March 2025 seeking a stay of execution of the court's judgment of 19th December 2024 pending an intended appeal to the Court of Appeal. The underlying suit, filed by plaint dated 25th April 2013, concerned Plot No. 7130-Kakola Adjudication Section (Nyando/Kakola/7130), in which the plaintiff alleged trespass by the defendants, including the burial of Domnic Onyango Olondo on the suit property by the 1st and 2nd defendants and occupation and construction by the 3rd and 4th defendants. By judgment delivered 19th December 2024, the court found the plaintiff to be the lawful owner, held that the defendants' entry was illegal trespass, granted a permanent injunction against the 2nd and 3rd defendants, stayed execution for 90 days to allow the 3rd defendant to vacate, awarded Kshs. 20,000 nominal damages against the 3rd defendant with interest, and awarded costs to the plaintiff. In the present application, the 2nd defendant argued the appeal would be rendered nugatory and offered security; the plaintiff opposed, contending the 2nd defendant was not in occupation and could not be evicted. Applying Order 42 Rule 6 of the Civil Procedure Rules and the authorities Halai & another v Thornton & Turpin (1963) Ltd and Kenya Shell Limited v Karuga, the court held that substantial loss is the cornerstone of the stay jurisdiction, and since the 2nd defendant was found not to be in occupation and no eviction order was made against him, he failed to demonstrate substantial loss. The application was dismissed with costs to the plaintiff on 16th October 2025.

Key legal issues

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Whether the 2nd defendant would suffer substantial loss if stay of execution is not granted

Holding

The application fails because the 2nd defendant was found not to be in occupation of the suit property and the court did not order his eviction, so no substantial loss could ensue from refusal of stay

Reasoning

The court applied Order 42 Rule 6(2) of the Civil Procedure Rules and the Halai v Thornton & Turpin three-condition test: sufficient cause, substantial loss, and security, with application made without unreasonable delay. Relying on Kenya Shell Limited v Karuga, substantial loss is the cornerstone of the jurisdiction. Since the judgment of 19th December 2024 found the 2nd defendant was not in occupation and made no eviction order against him, the court could not see how he would suffer substantial loss if stay were refused.

p. 4

Legal principles established

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  • An applicant for stay of execution pending appeal must demonstrate substantial loss; without it, the order cannot be granted

Court orders

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  1. 1.The Notice of Motion application dated 25th March 2025 is dismissed with costs to the plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)
  • Civil Procedure RulesOrder XLI Rule 4 (as referred in Kenya Shell Limited v Karuga)

Cases cited (2)

  • Halai & another v Thornton & Turpin (1963) Ltd
    [1990] KECA 65 (KLR)
  • Kenya Shell Limited v Karuga
    (1982 – 1988) I KAR 1018
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (power of the court appealed from to stay 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, "Odongo v Olondo & 3 others (Environment and Land Case Civil Suit 108 of 2013) [2025] KEELC 7123 (KLR)", Case Analysis (2025). Not stated in the excerpt (ELC suit, Kisumu; application dated 25th March 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7123/eng@2025-10-16

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