Ojwang v Ghelani & 5 others (Environment and Land Case 232 of 2013) [2026] KEELC 3187 (KLR)
The bottom line
#The Environment and Land Court in Kisumu refused to pause enforcement of a land ruling because the applicant waited too long and the order had already been carried out.
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 has been overtaken by events
- 2.Whether the Applicant has met and/or demonstrated the conditions set out for staying of execution of the orders of 31st July, 2025
- 3.Who should bear the costs of the instant application
Key legal issues
#Whether the application for stay of execution had been overtaken by events
Yes. The court order of 31st July, 2025 had been implemented: the register had been rectified and parcel KISUMU/KANYAKWAR B/2734 cancelled, as evidenced by the Surveyor's implementation report dated 10th December, 2025, which the Applicant did not controvert.
The court noted that the surveyor's report showed the subdivision of parcel 396 had been cancelled and parcels 1689-1770 restored, including parcel 2734. The Applicant, whose very purpose was to preserve parcel 2734, exhibited no evidence that the report was untrue. Staying execution of an already executed order would be futile and amount to issuing orders in a vacuum.
Whether the Applicant met the conditions for stay of execution under Order 42 Rule 6(2)
No. The court found the Applicant guilty of laches for waiting from August 2025 until December 2025 without taking steps to stop execution, by which time implementation had occurred.
The Applicant knew of the ruling and had filed a Notice of Appeal in August 2025, yet took no steps to stay or stop implementation until December 2025. Under Order 42 Rule 6(4), the appeal was deemed filed upon the Notice of Appeal, but delay in seeking stay resulted in the implementation being complete before the court was moved.
Whether an appeal was pending for purposes of Order 42 Rule 6
Yes. Both parties referred to a Notice of Appeal dated 6th August, 2025, and under Order 42 Rule 6(4) an appeal to the Court of Appeal is deemed filed when Notice of Appeal has been given.
There was no dispute that an appeal had been preferred against the ruling of 31st July, 2025. The court accepted that under Order 42 Rule 6(4), the giving of Notice of Appeal under the Court of Appeal Rules suffices for the appeal to be deemed filed for purposes of the stay rule. Nonetheless, pendency of appeal alone did not entitle the Applicant to stay given the overtaking by events.
Legal principles established
#- An application for stay of execution is overtaken by events where the order sought to be stayed has already been implemented, and granting it would be issuing orders in vain.
- A party aware of an order who takes no timely steps to stay its execution falls victim to its own laches.
Court orders
#- 1.The Notice of Motion dated 5th December, 2025 seeking stay of execution of the ruling of 31st July, 2025 is dismissed
- 2.Each party shall bear its own costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal at Kisumu (appeal pending; not an appellate judgment)
- Not stated (Notice of Appeal dated 6th August, 2025)
- Jurisdiction invoked
- Order 42 Rule 6 and Order 51 of the Civil Procedure Rules; sections 1A, 1B, 3 and 3A of the Civil Procedure Act
Relief refused
#Order of stay of execution of the ruling issued on 31st July, 2025 pending the hearing and determination of the appeal in the Court of Appeal at Kisumu
The order sought to be stayed had already been implemented; the suit parcel KISUMU/KANYAKWAR B/2734 had been cancelled in implementation of the court order, so granting stay would be vain; the Applicant was also guilty of laches
Costs of the application against the Plaintiff/Respondents
The court exercised its discretion to order each party to bear its own costs
Costs
Each party shall bear its own costs of 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.
Having considered the application and all material placed before me in support and in opposition thereof. I find that the prayer for stay of execution has been overtaken by events, and the application therefore fails.
The application is dismissed. Each party shall bear its own costs of the application.
That Interested Party/applicant, therefore, falls victim to its own laches.
As submitted on behalf of the 3rd and 4th Respondents, to grant an order of stay of execution in the circumstances would be vain.
Issues in the judgment
#Date inconsistency within the judgment: the application is dated 5th December, 2025, but the Further Affidavit in support is described as sworn on 2nd February, 2025, i.e. before the application.
The judgment states the ruling of 31st July, 2025 was obtained by 'the 3rd and 4th Defendants', but elsewhere the Applicant describes the ruling as being against the Interested Party's interests while submissions describe orders issued pursuant to the ruling; the identity of the ruling's beneficiaries is described inconsistently.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ojwang v Ghelani & 5 others (Environment and Land Case 232 of 2013) [2026] KEELC 3187 (KLR)", Case Analysis (2026). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3187/eng@2026-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.