National Bank of Kenya & another v Ochieng (Suing for and on Behalf of the Dependants and the Estate of Grace Nabude Ochieng (Deceased)) (Environment and Land Appeal E070 of 2025) [2026] KEELC 1390 (KLR)
The bottom line
#A Kenyan court paused the release of a land title held as bank loan security until an appeal is decided, preserving the lender's collateral.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to entertain objection to the transfer of the appeal from the High Court to the ELC
The objection was not properly before the court; the ELC cannot sit in appeal over a decision of the High Court, a court of concurrent jurisdiction.
The court reasoned that both the High Court and the ELC are courts of concurrent jurisdiction under the Constitution. The ELC therefore lacks power to review or sit on appeal over the High Court judge's decision to transfer the matter. The respondent's remedy lies in the Court of Appeal or by review before the High Court judge.
Whether stay of execution should issue under Order 42 Rule 6
Stay granted: substantial loss was shown because implementation of the decree would discharge the bank's security, delay was absent, and security was fixed by ordering deposit of the title with the court.
The decree required discharge of the charge and release of the title to the plaintiff, which would extinguish the bank's collateral for a facility of Kshs.11,617,934. If the property were disposed of before the appeal was heard, the appeal would be rendered nugatory. The appeal was filed about a month after judgment, so there was no inordinate delay. Custody of the title in court would prevent exercise of statutory power of sale.
Legal principles established
#- A court of concurrent jurisdiction cannot sit on appeal over or review the transfer decision of another court of concurrent jurisdiction; any grievance lies in the Court of Appeal or by review before the judge who transferred the matter.
- Substantial loss is the main parameter to be demonstrated by an applicant seeking stay of execution under Order 42 Rule 6.
Court orders
#- 1.Pending hearing and determination of the appeal, an order of stay of execution of the judgment dated 8/10/2025 and Decree of the trial court in Chief Magistrate Court Siaya MCELC E091 OF 2023
- 2.The Applicant/Appellant shall within 30 days deposit with the Court the title for the suit property Siaya/Karapul Ramba/1653 pending determination of the appeal
- 3.Costs of the application to abide the outcome of the appeal
- On appeal from
- Chief Magistrate's Court, Siaya
- MCELC E091 OF 2023
- Jurisdiction invoked
- Article 162(2)(b) of the Constitution (ELC as a court of concurrent jurisdiction) and Order 42 Rule 6 of the Civil Procedure Rules, 2010 (implication from the record: appeal transferred from the High Court to the ELC)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "National Bank of Kenya & another v Ochieng (Suing for and on Behalf of the Dependants and the Estate of Grace Nabude Ochieng (Deceased)) (Environment and Land Appeal E070 of 2025) [2026] KEELC 1390 (KLR)", Case Analysis (2026). ELC Appeal (Siaya) (formerly HCCOMMA/E003/2025 - Siaya); arising from Chief Magistrate Court Siaya MCELC E091 OF 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1390/eng@2026-03-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.