Ochola & another v Aburili (Suing as the Legal Administrator of the Estate of the Late Obed Aburili Otenyo - Deceased) (Environment and Land Appeal E015 of 2024) [2026] KEELC 1463 (KLR)
The bottom line
#The Vihiga High Court refused to stop the sale of land or pause a judgment, saying once it delivered its ruling, only the Court of Appeal could step in.
What this practically means
#Executive summary
#Key legal issues
#Whether the court had jurisdiction to grant a temporary injunction pending appeal to the Court of Appeal
The court had no remaining jurisdiction; the appellate jurisdiction under Order 42 Rule 6(6) was exhausted once judgment was delivered on 30th October 2025
Order 42 Rule 6(6) empowers the High Court sitting in appellate jurisdiction to grant a temporary injunction provided the procedure for instituting the appeal has been complied with. Here the appeal before the court had already been determined by the judgment of 30th October 2025 which allowed the appeal and dismissed the applicant's suit. Apart from processing costs, no pending business remained. The court was functus officio and the applicant's recourse was the Court of Appeal.
Whether the applicant demonstrated substantial loss to warrant a stay of execution
Substantial loss was not demonstrated; the documents relied on did not show the land was about to be sold
Under Order 42 Rule 6(2), stay requires demonstration of substantial loss, absence of unreasonable delay and security. The burden lies on the applicant, who must go beyond merely saying he resides on the land. The applicant claimed the respondents intended to sell the ancestral land and relied on messages, but one was untranslated and the other, dated 4th November 2025, contained no indication the land was due for sale. The court thus found the grounds for stay, particularly substantial loss, undemonstrated.
Legal principles established
#- Where the High Court has pronounced judgment on an appeal before it, its jurisdiction under Order 42 Rule 6(6) to grant a temporary injunction pending appeal is spent and the applicant must pursue relief in the Court of Appeal
- An applicant for stay of execution bears the burden of proving that substantial loss will result if the order is not granted
Court orders
#- 1.The application dated 17th November 2025 is declined
- 2.No order as to costs
- Jurisdiction invoked
- Order 42 Rules 6(2) and 6(6) of the Civil Procedure Rules 2010 (High Court exercising appellate jurisdiction over a subordinate court decision)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ochola & another v Aburili (Suing as the Legal Administrator of the Estate of the Late Obed Aburili Otenyo - Deceased) (Environment and Land Appeal E015 of 2024) [2026] KEELC 1463 (KLR)", Case Analysis (2026). Vihiga High Court Land and Environment Case No. E015/2025 (Notice of Motion dated 17th November 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1463/eng@2026-03-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.