Kangai & 4 others v Oddenyo & 2 others (Environment and Land Appeal E042 of 2025) [2026] KEELC 1454 (KLR)
The bottom line
#The Environment and Land Court in Siaya refused to pause a land judgment because the family appealing it failed to prove they would actually suffer substantial loss.
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 application meets the requirements for the grant of orders of stay of execution pending appeal
Key legal issues
#Whether the applicants proved substantial loss to warrant stay of execution under Order 42 Rule 6
No; substantial loss was not proved as the 1st applicant was not ordered out of the property and the injunction does not prevent the appellants entering to support her
The trial court allowed the 1st applicant to remain in the patriarch's house with ½ an acre. The permanent injunction binds the 2nd - 5th appellants but does not prevent them entering that portion to care for her. The supporting affidavit disclosed no deposition showing the 5th appellant resides on the suit property, and submissions cannot substitute evidence.
Whether the court should determine the merits of the appeal in a stay application
No; the court confines itself to the orders sought in the application
The parties largely argued the merits of the appeal in their affidavits, but the court held that in a stay application it does not delve into the merits of the pending appeal.
Legal principles established
#- Substantial loss must be proved, not merely alleged, to obtain stay of execution pending appeal
- Submissions cannot take the place of evidence
Court orders
#- 1.The Notice of Motion dated 5th September 2025 is dismissed
- 2.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- trial court (Siaya ELC Case 17 of 2022)
- Siaya ELC Case 17 of 2022
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)
Relief refused
#Stay of execution of the trial court judgment dated 5/8/2025 pending appeal
Substantial loss was not proved; the 1st applicant remains on the property with ½ an acre and the permanent injunction does not bar entry to support her
Costs
There shall be no orders as to costs noting that the parties are close relatives.
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.
This court is not persuaded that substantial loss has been proved to warrant the grant of the orders for stay of execution.
The upshot of the foregoing is that I find no merit in the application dated 5th September 2025. It is hereby dismissed. There shall be no orders as to costs noting that the parties are close relatives.
I must reiterate that submissions cannot take the place of evidence – see Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another [2014] eKLR.
Issues in the judgment
#Application date internally inconsistent: filed 5th September 2025 but submissions state 'the application having been filed on 4/09/2025'
The citation for Vishram Ravji Halai refers to Order 41 rule 6, noted in the judgment itself as '(sic)', while the operative provision is Order 42 Rule 6
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kangai & 4 others v Oddenyo & 2 others (Environment and Land Appeal E042 of 2025) [2026] KEELC 1454 (KLR)", Case Analysis (2026). Notice of Motion dated 5th September 2025 in the Appeal arising from Siaya ELC Case 17 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1454/eng@2026-03-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.