Odek v Mwadi & another (Environment and Land Appeal E018 of 2022) [2026] KEELC 4348 (KLR)
The bottom line
#Kenya's High Court dismissed a landowner's bid to block a property transfer, ruling it lacked jurisdiction and the stay application came far too late.
What this practically means
#Executive summary
#Key legal issues
#Whether the High Court has jurisdiction under Order 42 Rule 6(6) to grant a temporary injunction where the appeal before it has already been determined
The court has no such jurisdiction; Order 42 Rule 6(6) applies only where the court is exercising appellate jurisdiction over a pending appeal from a subordinate court or tribunal
Order 42 Rule 6(6) empowers the High Court to grant temporary injunction only in exercise of its appellate jurisdiction over an appeal from a subordinate court or tribunal. Here the court had already heard and dismissed the appeal on 13th February 2023, and ownership of the suit property was now before the Court of Appeal. There was no live matter before the court in its appellate capacity, so the prayer for injunction failed for want of jurisdiction.
Whether the Applicant was entitled to stay of execution of the judgment of 13th February 2023 pending appeal
No; the application was filed after inordinate, unexplained delay and the Applicant failed to demonstrate substantial loss, the judgment being a negative order
Although a Notice of Appeal was filed within ten days of the judgment, the stay application itself was filed over three years later, which the court found an inexplicably long and abusive delay. On substantial loss, the Applicant did not demonstrate what loss he would suffer; the judgment dismissed his appeal (a negative order) and the trial court's decree was also negative. Having failed on substantial loss, the court did not consider security.
Whether filing an appeal operates as an automatic stay of execution
Filing an appeal does not operate as an automatic stay of execution
The 1st Respondent argued, and the outcome reflects, that an appeal does not operate as an automatic stay; a party must satisfy the conditions in Order 42 Rule 6(2). The Applicant had neither sought leave to appeal the lower court judgment out of time nor stayed it, yet sought to stay a judgment that was never appealed against.
Legal principles established
#- The High Court may only grant a temporary injunction under Order 42 Rule 6(6) when exercising its appellate jurisdiction over an appeal from a subordinate court or tribunal that is pending before it
- An appeal is deemed filed once a Notice of Appeal has been lodged in the appropriate registry
- An application for stay of execution must be brought without unreasonable delay, demonstrate substantial loss, and offer security
- A court lacking jurisdiction should not take any further step once it realises it is not clothed with jurisdiction
Court orders
#- 1.The application dated 14th April 2025 is dismissed
- 2.Costs of the application to be borne by the Applicant in favour of the 1st Respondent
- Jurisdiction invoked
- Order 42 Rule 6(6) of the Civil Procedure Rules; sections 1A, 1B and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Odek v Mwadi & another (Environment and Land Appeal E018 of 2022) [2026] KEELC 4348 (KLR)", Case Analysis (2026). Not stated in judgment (arising from appeal No. E018 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4348/eng@2026-07-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.