Onyando & another (As administrators and legal representative of the Esxtate of Thomas Onyando Omeri) v Malala & 3 others (Land Case E061 of 2025) [2026] KEELC 1350 (KLR)
The bottom line
#A Kisumu court dismissed land heirs' bid for injunction and stays, ruling they failed to prove their case, loss, or reasons to pause existing proceedings.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants met the threshold for a temporary injunction restraining the respondents from dealing with Kisumu/Koru/280 and Kisumu/Koru/680
- 2.Whether stay of execution of the judgment in Tamu MC Land Case No. E02 of 2017 should be granted under Order 42 Rule 6(2)
- 3.Whether stay of proceedings in Kisumu MC Land Case E176 of 2023 and Tamu E024 of 2024 should be granted
Key legal issues
#Whether a temporary injunction could issue over the suit lands
No; the applicants failed to demonstrate the grounds under Order 40 Rule 1 and the Giella v Cassman Brown conditions
The court restated the Giella v Cassman Brown conditions and the Mrao definition of a prima facie case, then examined the parties' rival positions. The suit lands had been the subject of numerous suits, some concluded; the applicants' complaints concerned execution of existing decisions addressable in those cases, so no prima facie case or irreparable harm was shown.
Whether stay of execution and stay of proceedings should be granted
No; the Order 42 Rule 6(2) conditions were not met and no grounds for stay of proceedings were demonstrated
The court set out Order 42 Rule 6(2) requiring substantial loss, absence of unreasonable delay and security, and found none demonstrated. On stay of proceedings, the stages of the suits were undisclosed and the stringent test in Kenya Wildlife Service v James Mutembei was not met; the applicants have recourse in the existing cases.
Legal principles established
#- Stay of proceedings is a grave judicial action interfering with a litigant's right to conduct litigation, and the test for it is high and stringent
- A prima facie case in a civil application is a genuine and arguable case showing an apparent infringement of a right calling for explanation or rebuttal
Court orders
#- 1.The application dated 9th October 2025 is dismissed
- 2.Costs to the 1st and 2nd Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- not stated in the judgment; application brought under Order 40 Rule 1 and Order 42 Rule 6(2) of the Civil Procedure Rules
Relief refused
#Temporary injunction restraining the respondents from any dealings with Kisumu/Koru/280 and Kisumu/Koru/680
The applicants did not establish a prima facie case, irreparable harm or balance of convenience under Order 40 Rule 1 and Giella v Cassman Brown
Stay of execution of the judgment in Tamu MC Land Case No. E02 of 2017
The applicants did not demonstrate substantial loss, absence of unreasonable delay or willingness to furnish security under Order 42 Rule 6(2)
Stay of proceedings in Kisumu MC Land Case E176 of 2023 and Tamu E024 of 2024
No grounds demonstrated; the stages of the suits sought to be stayed were not disclosed and stay of proceedings is a grave judicial action with a high and stringent test
Costs
Costs to the 1st and 2nd Respondents who opposed the application
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The result is that the court finds that the application lacks merit and hereby dismisses it. Costs to the 1st and 2nd Respondents who opposed the application. Orders accordingly.
I find that the applicants have not demonstrated the grounds for the grant of an order of temporary injunction.
The applicants have not demonstrated that they shall sufier substantial loss if the order of stay is not granted, that the application has been made without unreasonable delay and that they are willing to give such security as the court may order.
It is clear that the suit lands have been the subject of numerous litigation, some of which have been concluded and judgment delivered, and others still pending hearing and determination.
Issues in the judgment
#The judgment does not state the names of the parties, the case number of the suit, or the court; identification must rely on the application date
Submissions were heard with only counsel for the respondents present; the record does not show service or an application to proceed in the applicants' absence
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Onyando & another (As administrators and legal representative of the Esxtate of Thomas Onyando Omeri) v Malala & 3 others (Land Case E061 of 2025) [2026] KEELC 1350 (KLR)", Case Analysis (2026). Notice of Motion dated 9th October, 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1350/eng@2026-03-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.