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ELCDismissedTamu MC ELC Case No.2 of 2017 (Appeal)· [2025] KEELC 8068 (KLR)

Onyando & another v Malala & another (Environment and Land Appeal E073 of 2025) [2025] KEELC 8068 (KLR)

Environment and Land Court
20 November 2025
EAE. Asati
1,410 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed a stay and injunction application, confirming that you cannot stay a dismissal order or use an injunction to block execution of a judgment.

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) determines a Notice of Motion dated 8th August, 2025 in which the Applicants, who had lost an application to be joined as Interested Parties/Defendants in Tamu MC ELC Case No.2 of 2017 by a ruling of 7th August, 2025, sought a stay of execution of the trial court's judgment pending appeal, together with an injunction restraining the Respondents from dealing with plots Kisumu/Koru/680 and 280. The application was anchored on Order 42 Rule 6(6) of the Civil Procedure Rules, sections 13, 14, 18 and 19 of the Environment and Land Court Act and articles 40 and 48 of the Constitution. The Applicants argued that the appeal would be rendered nugatory if they were evicted, and that the balance of convenience favoured them since they occupied the land. The Respondents countered that the Applicants were being overly litigious and had not met the conditions for stay or injunction. The court held that the Memorandum of Appeal challenged only the ruling dismissing the joinder application - a negative order incapable of execution - and that the Order 42 Rule 6(2) conditions (substantial loss, no unreasonable delay, security) were not demonstrated. It further held that execution of a judgment is not an unlawful action to be restrained by injunction, and the Giella v Cassman Brown conditions were not met. The application was dismissed with costs to the Respondents.

Key legal issues

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01

Stay of execution pending appeal

Holding

The application for stay fails because the order sought to be stayed is a negative dismissal order incapable of execution, and the Applicants did not demonstrate substantial loss, absence of unreasonable delay, or willingness to furnish security

Reasoning

Order 42 Rule 6(2) requires substantial loss, application without unreasonable delay, and security for due performance. The court found that the Memorandum of Appeal challenged only the ruling of 7th August 2025 dismissing the Applicants' joinder application. That dismissal is a negative order, incapable of execution, and the statutory conditions were not proved.

p. 3
02

Temporary injunction pending appeal

Holding

An injunction under Order 42 Rule 6(6) cannot be used to stay execution of a judgment; the Giella v Cassman Brown conditions were not demonstrated

Reasoning

A temporary injunction under Order 40 Rule 1 is meant to prevent wastage, damage or alienation of suit property. Actions in execution of a judgment are not unlawful actions within the contemplation of Order 40 Rule 1 and Order 42 Rule 6(6). The Applicants also failed to establish a prima facie case, irreparable injury, or balance of convenience.

p. 3

Legal principles established

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  • A dismissal order is a negative order which is not capable of execution and cannot be the subject of an order for stay of execution
  • Execution of a judgment is lawful and cannot be stayed by way of a temporary injunction under Order 42 Rule 6(6)

Court orders

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  1. 1.The Notice of Motion dated 8th August, 2025 is dismissed
  2. 2.Costs to the Respondents
On appeal from
Tamu Magistrates' Court (MC ELC)
Case No.2 of 2017
Jurisdiction invoked
Order 42 Rule 6(6) of the Civil Procedure Rules; sections 13, 14, 18 and 19 of the Environment and Land Court Act, 2011; articles 40 and 48 of the Constitution

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, "Onyando & another v Malala & another (Environment and Land Appeal E073 of 2025) [2025] KEELC 8068 (KLR)", Case Analysis (2025). Tamu MC ELC Case No.2 of 2017 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8068/eng@2025-11-20

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