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ELCPartially AllowedELCLA No. E093 of 2024· ELC LA E093/2024

Clementine Anyango Suka & 3 Others v Linus Otieno Aguyo

Environment and Land Court
1 October 2026
EAE. ASATI
891 words in judgment
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The bottom line

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The Environment and Land Court in Kisumu stopped the sale or eviction over disputed land until the family's appeal is heard.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kisumu (E. Asati, J) on a Notice of Motion dated 16th March 2026 by the four appellants in an appeal against the judgment and decree of the Chief Magistrate's Court at Kisumu (Hon. E. N. Mwenda) delivered on 28th October 2018 suit (Kisumu CMC ELC No. 83 of 2018), in which the respondent, as plaintiff, obtained eviction orders against the appellants over suit property SIAYA/NYANDIWA/913. The application, brought under Order 42 Rules 6(1)(2) and (6) and Order 51 Rules 1 and 3 of the Civil Procedure (Amended) Rules 2020 and sections 1A, 1B and 3A of the Civil Procedure Act, sought a temporary injunction restraining the respondent from sub-dividing, selling, disposing of, evicting or otherwise dealing with the suit property pending appeal, and a stay of execution of the trial judgment and decree. It was supported by the affidavit of Tom Suka and opposed by the respondent's replying affidavit sworn 5th May 2026. The court held that under Order 42 Rule 6(6) it had power, in its appellate jurisdiction, to grant a temporary injunction since the procedure for instituting the appeal had been complied with, the Memorandum of Appeal having been lodged. Citing Order 40 Rule 1 and Giella v Cassman Brown, and noting that only the 1st appellant resides on the land and faces imminent eviction, the court found the application merited and allowed it in terms of prayers 4 and 5, with costs of the application to abide the appeal. The appellants were directed to file and serve the Record of Appeal within 21 days.

Key legal issues

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01

Power to grant temporary injunction pending appeal

Holding

The court has power under Order 42 Rule 6(6) to grant a temporary injunction pending appeal where the procedure for instituting the appeal has been complied with; the Memorandum of Appeal dated 27th November 2024 had been lodged.

Reasoning

The court identified Order 42 Rule 6(6) as the source of its appellate power to grant temporary injunctions. It verified compliance with the appeal-institution procedure by noting the lodged Memorandum of Appeal, thereby satisfying the statutory precondition for exercising that power.

p. 4
02

Merits of the injunction and stay application

Holding

The application was found to have merit; the court allowed it in terms of prayers 4 and 5, preserving the suit land and staying execution pending appeal.

Reasoning

The court characterised the reliefs sought as preservation measures: the injunction to restrain disposal of the suit land and the stay to prevent execution of the trial judgment. After considering the application, reply and written submissions, it found merit and allowed prayers 4 and 5.

p. 5

Legal principles established

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  • Under Order 42 Rule 6(6), a court exercising appellate jurisdiction may grant a temporary injunction pending appeal, provided the procedure for instituting the appeal has been complied with.
  • The Giella v Cassman Brown conditions govern the grant of interlocutory injunctions: prima facie case with probability of success, irreparable injury not compensable in damages, and balance of convenience if in doubt.

Court orders

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  1. 1.Application allowed in terms of prayers 4 and 5 thereof
  2. 2.Temporary injunction restraining the Respondent from sub-dividing, selling, disposing of, evicting, transferring or otherwise dealing with suit property SIAYA/NYANDIWA/913 pending hearing and determination of the appeal
  3. 3.Stay of execution and/or enforcement of the judgment and decree of the Chief Magistrate's Court delivered 28th October 2024 pending determination of the appeal
  4. 4.Costs of the application to abide the appeal
  5. 5.Appellant directed to file and serve the Record of Appeal within 21 days
On appeal from
Chief Magistrate's Court at Kisumu
Kisumu CMC ELC No. 83 of 2018
Jurisdiction invoked
Order 42 Rules 6(1)(2) and (6) and Order 51 Rules 1 and 3 of the Civil Procedure (Amended) Rules 2020; sections 1A, 1B and 3A of the Civil Procedure Act, Cap 21

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, "Clementine Anyango Suka & 3 Others v Linus Otieno Aguyo", Case Analysis (2026). ELCLA No. E093 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6250/eng@2026-10-01

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