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ELCDismissedNot stated in the judgment (arising from appeal against Kisumu CMC ELC Case No. E146 of 2023)

Omondi v Ongiri & 3 others (Land Case Appeal E049 of 2024) [2025] KEELC 1266 (KLR)

Environment and Land Court
13 March 2025
EAE. Asati
843 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~3 min to read original · ~4 min brief

The bottom line

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The Environment and Land Court in Kisumu refused to pause land proceedings or block land dealings, ruling the applicant failed to meet the strict tests required.

What this practically means

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Executive summary

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The Applicant, by amended Notice of Motion dated 11th October 2024, sought stay of proceedings in Kisumu Chief Magistrate's Court ELC Case No. E146 of 2023 pending an intended appeal to the Environment and Land Court, together with a temporary injunction restraining the Respondents from selling, transferring or dealing with land parcel Kisumu/Nyalunya/2970, ancillary orders and costs. The application arose from the trial court's dismissal, as res judicata, of the Applicant's earlier application for stay of proceedings pending objection proceedings in Kisumu Succession Cause No. 792 of 2018 concerning the estate of Joseph Ongiri Atito, deceased. The Respondents opposed, contending the stay issue had been determined in three prior applications, that the Applicant was a stranger to the estate without locus standi, that he had intermeddled with the estate and fraudulently transferred the suit land, and that the orders would breach their right of access to justice. The court, citing Kenya Wildlife Services v James Mutembei, held that stay of proceedings is a grave judicial action with a higher and more stringent test than stay of execution. Since the appeal itself challenges the refusal of stay of proceedings, granting the orders sought would amount to determining the appeal before it is heard. The court also found the conditions for a temporary injunction under Order 40 Rule 1 and Giella v Cassman Brown undemonstrated. The application was dismissed with costs to the Respondents on 13th March 2025.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the trial court erred in declining to grant orders of stay of proceedings pending hearing of the objection in the Succession matter, as raised in the Memorandum of Appeal
  2. 2.Whether stay of proceedings in Kisumu CMC ELC Case No. E146 of 2023 should be granted pending the appeal
  3. 3.Whether a temporary injunction restraining dealing with Kisumu/Nyalunya/2970 ought to issue pending the appeal

Key legal issues

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01

Whether to grant stay of proceedings pending appeal

Holding

Refused; allowing it would pre-empt and determine the appeal before it is heard

Reasoning

The court applied the stringent test for stay of proceedings from Kenya Wildlife Services v James Mutembei. The appeal itself challenges the trial court's refusal of stay of proceedings; granting the same orders on interlocutory application would determine the appeal before hearing. The status of the underlying objection proceedings was also not disclosed. The application therefore lacked merit.

p. 2
02

Whether to grant a temporary injunction pending appeal

Holding

Refused; the Giella/Cassman Brown and Order 40 Rule 1 conditions were not demonstrated

Reasoning

The second prayer sought a temporary injunction restraining the Respondents from selling, transferring or dealing with Kisumu/Nyalunya/2970. The court held that the conditions for a temporary injunction under Order 40 Rule 1 and Giella vs Cassman Brown (prima facie case, irreparable injury, balance of convenience) had not been demonstrated by the Applicant.

p. 3

Legal principles established

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  • Stay of proceedings should not be confused with stay of execution pending appeal; the test for stay of proceedings is higher and more stringent because it interferes with a litigant's right to conduct litigation

Court orders

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  1. 1.The amended Notice of Motion dated 11th October, 2024 is dismissed
  2. 2.Costs of the application awarded to the Respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

EA
majority

Wrote the judgment

On appeal from
Kisumu Chief Magistrate's Court
ELC Case No. E146 of 2023
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court over appeals from the Magistrates' Court (order sought pending hearing and determination of the appeal); application brought under the Civil Procedure Rules

Relief refused

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Stay of proceedings in Kisumu CMC ELC Case No. E146 of 2023 pending the appeal

Granting it would amount to determining the appeal before hearing; the test for stay of proceedings is higher and more stringent

p. 2

Temporary injunction restraining dealing with Kisumu/Nyalunya/2970

Conditions for grant of temporary injunction under Order 40 Rule 1 and Giella vs Cassman Brown were not demonstrated

p. 3

Costs

Application dismissed with costs to the Respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

That stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. That the test for stay of proceedings is higher and stringent.
p. 2Test for stay of proceedings
My considered view is that to allow the application will amount to determining the appeal before it is heard.
p. 2Refusal of stay of proceedings
the conditions for grant of temporary injunction as contained in Order 40 Rule 1 and the case of Giella vs Cassman Brown have not been demonstrated.
p. 3Temporary injunction principles
I find that the application lacks merit and hereby dismiss it with costs to the Respondents.
p. 3Final orders and costs

Issues in the judgment

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minor

Judgment does not state its own case number, making identification of the appeal file dependent on the underlying Kisumu CMC ELC Case No. E146 of 2023

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, "Omondi v Ongiri & 3 others (Land Case Appeal E049 of 2024) [2025] KEELC 1266 (KLR)", Case Analysis (2025). Not stated in the judgment (arising from appeal against Kisumu CMC ELC Case No. E146 of 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1266/eng@2025-03-13

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