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ELCDismissedNot stated in judgment (arising from appeal No. E018 of 2022)

Odek v Mwadi & another (Environment and Land Appeal E018 of 2022) [2026] KEELC 4348 (KLR)

High Court of Kenya
1 July 2026
4,758 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Applicant, unsuccessful in Migori CMCC No. 512 of 2018 (Joseph Onyango Mwangi v Edward Odiwour), applied by Notice of Motion under Order 42 Rule 6(6) of the Civil Procedure Rules for a temporary injunction restraining the Respondents from transferring or dealing with L.R No. Kamagambo/Kabuor/7564, and for stay of execution of the High Court's judgment of 13th February 2023 dismissing his appeal against the subordinate court's refusal to set aside an ex-parte judgment. He relied on his pending appeal to the Court of Appeal (Kisumu CoA No. E192 of 2023). The 1st Respondent opposed, arguing abuse of process (a replica application dated 20th April 2024 had been withdrawn), that the court was functus officio, that the appeal targeted the High Court's ruling rather than the lower court's judgment, and that no appeal lies against the un-appealed subordinate court judgment. The court framed three issues: jurisdiction, whether the orders should be granted, and costs. On jurisdiction, applying Owners of the Motor Vessel 'Lillian S', Bartholomew Mwanyungu and Abdalla v Kadenge, it held that Order 42 Rule 6(6) confers power to grant temporary injunctions only when the High Court sits in appellate capacity over a pending appeal from a subordinate court; since its own appeal had been concluded and the property dispute was now before the Court of Appeal, the injunction prayer failed. On stay, the court found a Notice of Appeal had been filed within ten days, but the application came over three years after judgment - an inexplicable and abusive delay - and the Applicant failed to show substantial loss, the judgment being a negative order. The application was dismissed with costs to the 1st Respondent only, on 1st July 2026.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the court has jurisdiction to hear and determine this application, specifically on injunction
  2. 2.Whether the Applicant should be granted the orders sought (injunction and stay of execution pending appeal)
  3. 3.Who should bear the costs of the application

Key legal issues

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01

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

Holding

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

Reasoning

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.

p. 6
02

Whether the Applicant was entitled to stay of execution of the judgment of 13th February 2023 pending appeal

Holding

No; the application was filed after inordinate, unexplained delay and the Applicant failed to demonstrate substantial loss, the judgment being a negative order

Reasoning

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.

p. 8
03

Whether filing an appeal operates as an automatic stay of execution

Holding

Filing an appeal does not operate as an automatic stay of execution

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 1.The application dated 14th April 2025 is dismissed
  2. 2.Costs of the application to be borne by the Applicant in favour of the 1st Respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Order 42 Rule 6(6) of the Civil Procedure Rules; sections 1A, 1B and 3A of the Civil Procedure Act

Relief refused

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Temporary interim injunction restraining the Respondents from subdividing, selling, transferring or dealing with the suit property Kamagambo/Kabuor/7564 pending the appeal in Kisumu Court of Appeal No. E192 of 2023

The court lacks jurisdiction under Order 42 Rule 6(6) since the appeal before it has been concluded and the subject matter is now before the Court of Appeal

p. 6

Stay of execution of the judgment delivered on 13th February 2023 pending the appeal in the Court of Appeal

The application was brought after inordinate and unexplained delay, the applicant failed to demonstrate substantial loss, and the judgment sought to be stayed was a negative order

p. 9

Costs

Costs shall be borne by the Applicant, but only to or in favour of the 1st Respondent

Quotable passages

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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 therefore not vested with jurisdiction to entertain the instant application. The prayer for injunction therefore fails.
p. 6Jurisdiction under Order 42 Rule 6(6)
However, the applicant has NOT satisfied it that the application was filed without unreasonable delay. He has miserably failed to do so. As a matter of fact, the delay is inexplicably long.
p. 8Stay of execution - unreasonable delay
The applicant has not demonstrated to this court the nature of the substantial loss he would sufier if stay of execution is not granted. This limb of the Application fails.
p. 9Stay of execution - substantial loss
On the issue of costs, the same shall be borne by the Applicant but only to or in favour of the 1st Respondent. Orders accordingly.
p. 9Final orders and costs

Issues in the judgment

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minor

The motion is dated '14th April 2024' but the rest of the documents are dated 14th April 2025; the judgment itself notes the discrepancy

minor

Inconsistent dates within the judgment: the trial court judgment is described both as delivered on 3rd September 2019 and as 'the judgment of 30th September 2019'

minor

Inconsistent dates for the High Court ruling: variously '13th February 2023' and '13th February 2024'

minor

Respondent's submissions are dated '24th February 2026', a date after the application was filed in 2025 and apparently typographical

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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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.