Okombo v Ajwang (Civil Appeal (Application) E148 of 2024) [2026] KECA 783 (KLR)
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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the application for stay of execution is res judicata
- 2.Whether the intended appeal is arguable
- 3.Whether the intended appeal would be rendered nugatory if stay is not granted
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
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
Relief refused
#Stay of execution of the consent judgment dated 13th July 2010 in Kisii Land Case No. 10 of 2008 (consolidated with Land Case No. 100 of 2008) and the ruling of GMA Ong'ondo, J delivered 12th March 2024
The intended appeal is not arguable and the order sought to be stayed is a negative order incapable of being stayed
Costs
The application is dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
For an applicant to succeed in an application under this Rule, he must establish the twin principles of arguability and the nugatory aspect.
the intended appeal does not raise any arguable issues capable of consideration by this Court. Secondly, the order that the applicant wishes to stay, is a negative order which is incapable of being stayed.
The application lacks merit and is hereby dismissed with costs to the respondent.
Issues in the judgment
#The judgment refers to 'Kisii Hig Court Civil Case No. 100 of 2008' while the application describes the decree as arising from 'Land Case No. 10 of 2008 consolidated with land Case No, 100 of 2008' - an apparent inconsistency in the case number in the record.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okombo v Ajwang (Civil Appeal (Application) E148 of 2024) [2026] KECA 783 (KLR)", 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.