Wasianju v Odulah
The bottom line
#The Court of Appeal struck out a stay application because the notice of appeal on file targeted the wrong decision, so no competent appeal existed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether there is a competent appeal pending upon which the Court can grant injunction/stay orders under Rule 5(2)(b)
- 2.Whether a notice of appeal against the judgment of 23rd May 2024 was lodged as a condition precedent to the Court's jurisdiction
Key legal issues
#Jurisdiction under Rule 5(2)(b) in the absence of a notice of appeal against the decision sought to be stayed
The Court lacks jurisdiction to grant a stay or injunction under Rule 5(2)(b) where no notice of appeal has been lodged against the very decision sought to be stayed; the notice on record must target that decision.
The Court noted that Rule 5(2)(b) jurisdiction presupposes an existing appeal or a manifested intention to appeal via lodgment of a notice of appeal. On perusal, the notice of appeal dated 23rd October 2024 sought to appeal a ruling delivered on 19th September 2024, not the judgment of 23rd May 2024 granting the respondent adverse possession. The application was therefore incompetent and was struck out with costs.
Legal principles established
#- A notice of appeal from the decision sought to be stayed is a condition precedent to the exercise of the Court of Appeal's jurisdiction under Rule 5(2)(b); without a notice of appeal against the specific decision, the Court has no jurisdiction to grant orders.
Court orders
#- 1.The Notice of Motion dated 26th July 2026 is struck out with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Bungoma
- Bungoma ELC Case No. 7 of 2019
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Temporary injunction restraining the respondent from harvesting, cutting, selling or disposing of crops, entering upon or dealing with land parcel L.R No. Bungoma/Kiminini/1, and an order to deposit crop proceeds into a joint interest-earning account
The application was not competently before the Court because the only notice of appeal on record challenged a ruling of 19th September 2024, not the judgment of 23rd May 2024 sought to be appealed
Costs
Costs of the application to the respondent (Fredrick)
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.
It is notable in this regard that a notice of appeal from the decision sought to be stayed is a condition precedent for the exercise of this Court’s jurisdiction under Rule 5(2)(b) of the Court of Appeal Rules.
We must therefore down our tools in the absence of a Notice of Appeal appealing the said judgment.
We accordingly nd that the Notice of Motion dated 26th July 2026 is not competently before us, and it is hereby struck out with costs to the respondent (Fredrick).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wasianju v Odulah", Case Analysis (2026). Civil Appeal (Application) E521 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2072/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.