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ELCDismissedNotice of Motion dated 25th September 2025 in the appeal from Nyamira CM ELC No. 6 of 2021· [2026] KEELC 852 (KLR)

Onyando & another v Nyangena & another (Environment and Land Appeal E013 of 2025) [2026] KEELC 852 (KLR)

Environment and Land Court
18 February 2026
1,254 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to pause a ruling striking out a land suit because striking out orders nothing to be done, so there is nothing to stay.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nyamira (D. O. Ohungo, J) on a Notice of Motion dated 25th September 2025 filed by the Appellants in an appeal against the judgment of the Chief Magistrate's Court at Nyamira (B. Ondego, CM) delivered on 5th August 2025 in Nyamira CM ELC No. 6 of 2021, in which both the Appellants' suit and the Respondents' counterclaim were struck out with each party bearing its own costs. The Appellants sought stay of construction on the suit properties (L.R. Nos. North Mugirango/Bomwagamo/2574 and 2573), restoration to possession, injunctive orders and enforcement by the OCS Ekenyoro Police Station, supported by an affidavit of the First Appellant, Briska Nyaboke Onyando, who alleged she would suffer substantial loss through eviction and construction. The Respondents filed no response and relied on the record. The court held that the application was governed by Order 42 rule 6(2) of the Civil Procedure Rules and that the relief sought reduced to stay of execution, since restoration to possession was in substance an injunction pending appeal governed by the same principles. Because the decree appealed against merely struck out the suit and counterclaim, it was a negative order incapable of execution; there was nothing to stay. Following Jennifer Akinyi Osodo and Western College, and applying Kenya Shell and Kenya Power, the court dismissed the motion, with costs to abide the outcome of the appeal.

Key legal issues

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01

Whether stay of execution pending appeal should issue where the order appealed against merely struck out the suit and counterclaim with each party bearing own costs

Holding

Stay refused; the order is a negative order incapable of execution, so there is nothing to stay

Reasoning

Order 42 rule 6(2) requires demonstration of substantial loss, absence of unreasonable delay and security. The court reasoned that the decree below did not order the parties to do or refrain from doing anything; execution could only lie in respect of costs. Following the Court of Appeal's reasoning in Jennifer Akinyi Osodo and Western College, a negative order cannot be stayed, and an order restoring possession is in substance an injunction pending appeal which must equally fail.

p. 3
02

Whether the Appellants demonstrated substantial loss to warrant the equitable relief sought

Holding

No; without an executable decree the threshold of substantial loss on an order capable of execution was not met

Reasoning

Relying on Kenya Power & Lighting Co. Ltd v Kigaita Ngare Unduthu and Kenya Shell Limited v Benjamin Karuga Kibiru, the court held that it is virtually impossible for a stay application to succeed absent demonstration of substantial loss. Since the only decree was a negative order, the asserted loss from construction and eviction could not found stay jurisdiction over that decree.

p. 3

Legal principles established

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  • A negative order - one that does not order a party to do or refrain from doing anything - is incapable of execution and there is nothing to stay
  • An order restoring a party to possession pending appeal is in substance an injunction pending appeal governed by the same principles as stay of execution pending appeal
  • Substantial loss is the cornerstone of the jurisdiction to grant stay of execution pending appeal

Court orders

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  1. 1.Dismissal of the Notice of Motion dated 25th September 2025
  2. 2.Costs shall abide the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6(1) and 6(2)

Cases cited (4)

  • Kenya Power & Lighting Co. Ltd v Kigaita Ngare Unduthu & 36 others
    [2020] eKLR
  • Kenya Shell Limited v Benjamin Karuga Kibiru & another
    [1986] eKLR
  • Jennifer Akinyi Osodo v Boniface Okumu Osodo & 3 others
    [2021] KECA 465 (KLR)
  • Western College of Arts and Applied Sciences v EP Oranga & 3 others
    [1976] eKLR
On appeal from
Chief Magistrate's Court at Nyamira
Nyamira CM ELC No. 6 of 2021
Jurisdiction invoked
Appellate jurisdiction over the Chief Magistrate's Court; application brought under Order 42 rule 6(2) of the Civil Procedure Rules

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 Nyangena & another (Environment and Land Appeal E013 of 2025) [2026] KEELC 852 (KLR)", Case Analysis (2026). Notice of Motion dated 25th September 2025 in the appeal from Nyamira CM ELC No. 6 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/852/eng@2026-02-18

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