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ELCPartially AllowedSiaya MCELC E090/2023 (Appeal) - Notice of Motion dated 25/11/2025· [2026] KEELC 406 (KLR)

Lamba v Otieno (Sued and the Administrator of the Estate of the Late Edwina Atieno Murai) & 3 others (Environment and Land Appeal E071 of 2025) [2026] KEELC 406 (KLR)

Environment and Land Court of Kenya
29 January 2026
2,525 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Siaya court stopped an eviction pending appeal but froze the land, meaning neither side can build, sell or evict until the appeal is decided.

What this practically means

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Executive summary

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This is a ruling by the Environment and Land Court at Siaya (A. E. Dena, J) on a Notice of Motion dated 25/11/2025 by the appellant, Gerald Odhiambo Lamba, seeking stay of execution of the judgment and decree of Hon. Benjamin Limo delivered on 07.11.2025 in Siaya MCELC E090/2023, together with an injunction restraining eviction from East Gem/Nyamninia/1351 pending appeal. The application was brought under Order 42 Rule 6 and Order 43 Rule 2 of the Civil Procedure Rules 2010. The appellant asserted over ten years' possession and recent cultivation, and an attempted eviction on 12.11.2025 reported to Yala Police Station. The 3rd respondent opposed, arguing the parcel no longer existed having been subdivided into East Gem/nyamninia/2845 and 2846, which he had purchased and occupied since 2023; the 2nd respondent, administrator of the estate of the original registered owner, echoed this and urged that status quo be maintained as at the date of judgment. The court found the application filed promptly, and that the attempted eviction was evidenced by a police OB entry and not specifically denied. It held the history of the contested parcel did not die with the subdivision, that fraudulent-registration allegations were matters for the appeal, and that the court could maintain status quo of its own motion under its general jurisdiction. The court allowed the application: stay of execution and of eviction was granted, with a reciprocal restraint barring the appellant from constructing on the land, and costs were awarded to the respondents.

Key legal issues

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01

Whether the application for stay of execution pending appeal was brought without unreasonable delay

Holding

Yes - the application was filed within about two days of the judgment, discounting the weekend, so there was no inordinate delay

Reasoning

The trial court judgment was delivered on 07.11.2025 and the application filed on 12.11.2025. Discounting the weekend, this was less than two days. Promptness is one of the Order 42 rule 6(2) conditions and the court found it satisfied.

p. 4
02

Whether the applicant demonstrated substantial loss

Holding

Yes - an attempted eviction on 12.11.2025 was evidenced by a police OB entry and not specifically denied by the respondents, and the appeal would be rendered nugatory if eviction proceeded

Reasoning

The applicant deponed to over ten years' possession and recent cultivation of maize, and to an attempted eviction on 12.11.2025 reported to Yala Police Station under OB No. 12/12/11/2025. The court noted the respondents did not specifically deny the attempted eviction and that one of them insisted he was in possession, so maintaining the status quo prejudiced neither side.

p. 4
03

Whether conservatory orders can issue in respect of a parcel alleged to be non-existent after subdivision

Holding

The court was not deterred; the registration and subdivision are contested as fraudulent and the history and occupation of the original parcel survive subdivision; status quo was maintained on both register and ground

Reasoning

The 3rd respondent argued parcel 1351 no longer existed having been subdivided into 2845 and 2846, making orders vague and unenforceable. The court held that since the registration of the vendors and the subdivision were contested as fraudulent, the history of the parcel did not die with the subdivision, and the merits are for the appeal.

p. 4

Legal principles established

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  • The grant of stay of execution pending appeal is discretionary and requires substantial loss, prompt application and security
  • Mere execution or its likelihood does not itself amount to substantial loss; the applicant must show execution will irreparably affect the essential core of the appeal
  • The court may order maintenance of status quo of its own motion under its general jurisdiction, even where not specifically prayed
  • Subdivision of a contested parcel does not extinguish the history of that parcel or the dispute over it

Court orders

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  1. 1.Pending the hearing and determination of the appeal, a Conservatory Order issuing staying execution of the Judgment and Decree of the trial court delivered on 07.11.2025 in Siaya MCELC E090/2023
  2. 2.No eviction of the Appellant by the Decree holder Respondents by themselves or their assigns or agents pending the determination of the appeal
  3. 3.The Appellant to keep the peace and not construct any developments on East Gem/Nyamninia/1351 or the subdivisions LR. No. East Gem/nyamninia/2845 & 2846 pending determination of the appeal
  4. 4.Costs granted to the Respondent
On appeal from
Magistrates' Court (Environment and Land) at Siaya
Siaya MCELC E090/2023
Jurisdiction invoked
Order 42 Rule 6 and Order 43 Rule 2 of the Civil Procedure Rules 2010 (appellate/interlocutory jurisdiction over appeals from the magistrates' court)

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, "Lamba v Otieno (Sued and the Administrator of the Estate of the Late Edwina Atieno Murai) & 3 others (Environment and Land Appeal E071 of 2025) [2026] KEELC 406 (KLR)", Case Analysis (2026). Siaya MCELC E090/2023 (Appeal) - Notice of Motion dated 25/11/2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/406/eng@2026-01-29

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