John Odero Okombo v Samson Ooko Ajwang
The bottom line
#Kenya's Court of Appeal refused to pause a land judgment, ruling the appeal had no merit and you cannot stay a negative court order.
What this practically means
#Executive summary
#Key legal issues
#Arguability of the intended appeal
The intended appeal is not arguable because the dispute is res judicata, the suit property having been declared the respondent's by several decisions of courts of competent jurisdiction, including an unchallenged decree of the High Court.
The court traced the litigation history: the High Court (Makhandia, J) declared the respondent's parent lawful owner of the suit property, ordered eviction and a permanent injunction, and that decree was never appealed. The applicant's subsequent ELC suit to set aside that decision was dismissed as res judicata. Facing that settled position, the applicant could not demonstrate an arguable appeal under Rule 5(2)(b).
Nugatory aspect
Having found the appeal not arguable, the court did not consider whether the appeal would be rendered nugatory.
The twin tests under Rule 5(2)(b) need not both be satisfied where the first fails; once the court found no arguable issues, it declined to examine the nugatory limb, noting it was unnecessary to reach the second question.
Legal principles established
#- An applicant under Rule 5(2)(b) of the Court of Appeal Rules must establish the twin principles of arguability and the nugatory aspect.
- A negative order is incapable of being stayed.
Court orders
#- 1.The application for stay of execution is dismissed
- 2.Costs of the application awarded to the respondent
- On appeal from
- Environment and Land Court at Homa Bay
- ELC No. E010 of 2023 (OS)
- Jurisdiction invoked
- Section 17(1), 18(2) and 2 of the Land Registration Act 2012, Section 1B and 78 of the Civil Procedure Act, Order 42 Rule 6(1) and (2) of the Civil Procedure Rules; in substance Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "John Odero Okombo v Samson Ooko Ajwang", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/783/eng@2026-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.