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ELCOtherELCLA No. E007 of 2026· [2026] KEELC 5350 (KLR)

Masarare v Mwita (Environment and Land Appeal E007 of 2026) [2026] KEELC 5350 (KLR)

Environment and Land Court
12 August 2026
4,332 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~17 min to read original · ~4 min brief

The bottom line

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A Kenyan court struck out a stay application because the applicant skipped the trial court, confirming you must ask the original court first before seeking a stay on appeal.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Migori (Nyagaka J) determined a Notice of Motion dated 18th June 2026 by Chacha Masarara seeking stay of execution of a judgment of the Senior Principal Magistrate's Court at Kehancha delivered on 31st March 2026 in Kehancha ELC Case No. E009 of 2025. The trial court had granted the Respondent a permanent injunction, declared the Applicant a trespasser, ordered vacant possession, and awarded general damages of Kshs. 100,000 with a 60-day grace period to vacate. The Applicant filed an appeal and then sought a stay directly in the appellate court without first applying to the trial court. The Respondent raised a preliminary objection on two grounds: that M.N. Oonge & Co. Advocates were improperly on record without leave under Order 9 Rule 9, and that the application should have first been presented to the trial court. The court applied the Court of Appeal's decision in Tobias M. Wafubwa v Ben Butali to hold that an appeal constitutes new proceedings in a different court, so new counsel may come on record without leave; the first objection ground failed. On the substantive issue, the court held that under Order 42 Rule 6(1) the primary stay jurisdiction vests in the trial court, and the appellate court's jurisdiction is supervisory; bypassing the trial court amounts to forum shopping. The application was struck out as premature and incompetent. However, the court granted a 15-day conditional stay to allow the Applicant to properly move the trial court, directed service of the Record of Appeal, admitted the appeal to hearing by written submissions, and ordered each party to bear its own costs.

Key legal issues

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01

Whether M.N. Oonge & Co. Advocates were improperly on record without leave under Order 9 Rule 9

Holding

Objection failed; an appeal is new proceedings in another court, so new counsel may come on record without leave or notice of change

Reasoning

Applying the Court of Appeal's decision in Wafubwa, the court held that once judgment is entered, an appeal commences new proceedings in a different court with different applicable rules. The Environment and Land Court at Migori is a superior court of record exercising distinct appellate jurisdiction. The strict-compliance authorities concerned changes within continuing proceedings before the same court and were distinguished.

p. 11
02

Whether the appellate court can entertain a first-instance application for stay where the trial court was never moved

Holding

No; the application was premature and incompetent and was struck out, though a short conditional stay was granted

Reasoning

Order 42 Rule 6(1) vests primary stay jurisdiction in the court that issued the decree. The appellate court's role is supervisory, to review what the trial court has done on a proper application. Allowing parties to leap-frog the trial court would encourage forum shopping. The Applicant never moved the trial court during the 60-day grace period and came 19 days after its lapse with no explanation.

p. 15
03

Whether Order 42 Rule 6(6) conferred jurisdiction to grant an injunction

Holding

The submission was misconceived because no prayer for injunction was included in the application

Reasoning

Although subrule (6) confers power to grant injunctive relief, the application before the court contained no prayer for injunction. The subrule therefore could not form the basis of conferment of jurisdiction on the court without the appellant first approaching the lower court. The submission was rejected.

p. 18

Legal principles established

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  • An advocate newly instructed to prosecute an appeal is not required to obtain leave or file a notice of change of advocates under Order 9 Rule 9, as an appeal is a commencement of new proceedings
  • The appellate court's jurisdiction under Order 42 Rule 6 is supervisory; a party seeking stay of execution must first move the trial court

Court orders

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  1. 1.The first ground of the Preliminary Objection fails; the firm of M.N. Oonge & Co. Advocates is properly on record for the Applicant in the Appeal
  2. 2.The application for stay of execution is struck out as premature and incompetent
  3. 3.A conditional stay of execution of the Judgment and decree of 31st March 2026 in Kehancha ELC Case No. E009 of 2025 granted for fifteen (15) days to enable the Applicant to properly move the trial court; failing which the stay lapses automatically
  4. 4.The Appellant directed to file a Record of Appeal within thirty (30) days, and having already filed it, to serve it
  5. 5.The Respondent granted leave within fifteen (15) days to make any relevant application regarding compliance with or competence of the Record of Appeal
  6. 6.Each party to bear its own costs
  7. 7.The Appeal admitted to hearing by way of written submissions on 29th October 2026; appellant to file and serve written submissions by 12th September 2026, Respondent by 12th October 2026
On appeal from
Senior Principal Magistrate's Court at Kehancha
Kehancha ELC Case No. E009 of 2025
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules 2010; Sections 1A, 1B and 3A of the Civil Procedure Act

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, "Masarare v Mwita (Environment and Land Appeal E007 of 2026) [2026] KEELC 5350 (KLR)", Case Analysis (2026). ELCLA No. E007 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5350/eng@2026-08-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.