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ELCPartially AllowedRuling on Notice of Motion dated 7th June 2025 in appeal from Kakamega CM MCELC Misc Case No. E037 of 2025· [2025] KEELC 7480 (KLR)
Oriedo v Khayati (Environment and Land Appeal E046 of 2025) [2025] KEELC 7480 (KLR)
Environment and Land Court (appellate supervisory jurisdiction over subordinate court matter) - Kakamega
30 October 2025
1,622 words in judgment
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·~6 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#This is a ruling on a notice of motion dated 7th June 2025 in which the appellant sought a stay of implementation and execution of an ex parte order issued on 21st May 2025 and dated 23rd May 2025 in Kakamega Chief Magistrates Court MCELC Misc Case No. E037 of 2025, together with an order that the trial court file be transferred to the Environment and Land Court. The appellant deponed that he learned only on 27th May 2025 of ex parte orders directing survey and transfer of 0.4 hectares from parcel No. Isukha/Mukhonje/2673 to the respondent, without ever being served or joined in the litigation. The respondent opposed, asserting he had purchased the 0.4 hectares for Kshs. 1,100,000 on 24th July 2023, taken vacant possession, and was later dispossessed, prompting his successful application below. The court identified a single issue: whether the applicant met the Order 42 Rule 6 threshold for stay pending appeal. Applying James Wangalwa and Tropical Commodities, and invoking Article 50 of the Constitution, the court held that the undisputed fact that the impugned orders were granted ex parte without service violated the applicant's right to be heard, and that such denial of hearing amounts to substantial loss. The application was allowed: execution and implementation of the order of 23rd May 2025 was stayed pending determination of the appeal, with costs to the applicant. The prayer to transfer the trial court file was rendered superfluous as the certified file was already before the court. Judgment delivered by A. Nyukuri, Judge, on 30th October 2025 at Kakamega.
Key legal issues
#01
Whether the applicant met the Order 42 Rule 6 threshold for stay of execution pending appeal
Holding
Yes - the ex parte order was issued without service, violating the applicant's right to be heard, which constitutes substantial loss
Reasoning
Order 42 Rule 6 requires substantial loss, application without unreasonable delay, and security. The court found the impugned orders were issued ex parte the same day without directing service on the applicant, violating Article 50. The respondent did not dispute lack of service. Denial of hearing constitutes substantial loss justifying stay pending appeal.
p. 3
Legal principles established
#- Being denied an opportunity to be heard amounts to substantial loss for purposes of stay of execution pending appeal
- Imminent execution alone is not a basis for granting stay; execution is a lawful process
Court orders
#- 1.Stay of implementation and execution of the order given on 21st May 2025 and dated 23rd May 2025 in Kakamega MCELC MISC CASE NO. E037 OF 2025, pending the hearing and determination of this appeal
- 2.Costs of the application awarded to the applicant/appellant
- On appeal from
- Chief Magistrates Court at Kakamega
- MCELC MISC CASE NO. E037 OF 2025
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal); Article 50 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oriedo v Khayati (Environment and Land Appeal E046 of 2025) [2025] KEELC 7480 (KLR)", Case Analysis (2025). Ruling on Notice of Motion dated 7th June 2025 in appeal from Kakamega CM MCELC Misc Case No. E037 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7480/eng@2025-10-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.