Oyaro v Anayo & another (Environment and Land Appeal E016 of 2025) [2025] KEELC 1268 (KLR)
The bottom line
#A Kisumu court blocked an eviction pending appeal, but ruled that a dismissed suit with no cost order leaves nothing to 'stay' — plead your remedy correctly.
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 Applicant has met the grounds for grant of a temporary injunction pending hearing and determination of the appeal under Order 40 Rule 1 and Order 42 Rule 6(6)
- 2.Whether the Respondents' actions constitute execution of the trial court's judgment
- 3.Whether it is in the interest of justice to preserve the status quo pending the appeal
Key legal issues
#Whether a temporary injunction pending appeal should issue
Yes - in the interest of justice, to preserve the status quo pending the appeal, conditional on an undertaking as to damages
The court observed that both parties lay claim to the suit lands, and that the Appellant is in occupation and claims to have developed structures thereon, while nothing now stops the 1st Respondent from taking possession. Balancing these circumstances, the court found preservation of the prevailing status quo pending appeal to be in the interest of justice, with the 1st Respondent compensable through costs and an undertaking for damages.
Whether the Respondents' conduct amounted to execution of the trial court judgment
No - there was no order capable of execution since the suit was dismissed with no orders as to costs
The court examined the annexed trial court judgment and found the suit was dismissed with no orders as to costs. Consequently, any actions by the Respondents complained of by the Appellant could not be in execution of the judgment, since no order of the trial court was capable of execution. This undermined arguments framed in terms of stay of execution.
Whether the application, framed in submissions as one for stay of execution, was properly before the court
The application before the court was one for temporary injunction pending appeal, not stay of execution, notwithstanding how the parties framed their submissions
The court distinguished the prayers sought in the Notice of Motion from the parties' submissions. Although counsel argued the matter in terms of execution and stay under Order 42 Rule 6(2), the substantive prayer was for a temporary injunction pending appeal, and the court determined the application on that basis.
Legal principles established
#- An appellate court may grant a temporary injunction pending appeal under Order 42 Rule 6(6), provided the procedure for instituting the appeal from the subordinate court has been complied with and the applicant demonstrates the Giella v Cassman Brown grounds
- Where a suit is dismissed with no orders as to costs, there is no decree capable of execution, and actions complained of cannot be execution of the judgment
Court orders
#- 1.Pending hearing and determination of the appeal, a temporary injunction is issued restraining the Respondents, their servants and/or agents jointly and severally from evicting the Applicants, cultivating, selling, transferring, disposing of, dealing and/or interfering with suit parcel numbers Unsurveyed Residential Site 567 and 568 Migosi Site and Service Scheme, on condition that the Applicant gives an undertaking as to damages, in writing, to be filed within 14 days
- 2.Costs of the application to the 1st Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Winam Senior Principal Magistrate's Court (SPMC)
- SPMC ELC NO. 72 OF 2018
- Jurisdiction invoked
- Order 42 Rule 6(6) of the Civil Procedure Rules, together with Order 40 Rules 1 & 2 and sections 1A, 1B and 3A of the Civil Procedure Act
Relief refused
#Stay of execution of the judgment of the subordinate court
The court noted that although parties addressed stay of execution, the application before it was for temporary injunction; further, the suit was dismissed with no orders as to costs, so there is no order capable of execution
Costs
Costs of the application to the 1st 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.
pending hearing and determination of the appeal, a temporary injunction is issued restraining the Respondents, their servants and/or agents jointly and severally from evicting the Applicants, cultivating, selling, transferring, disposing of, dealing and/or interfering whatsoever with the suit parcel numbers Unsurveyed Residential Site 567 And 568 Migosi Site And Service Scheme
Costs of the application to the 1st Respondent.
I find that it is in the interest of justice to preserve the prevailing status quo pending hearing and determination of the appeal by granting an order of temporary injunction.
The 1st Respondent can be compensated by way of costs and an undertaking for damages.
Issues in the judgment
#The case number of the present appeal/ruling is not expressly stated; only the trial court case number (WINAM SPMC ELC NO. 72 OF 2018) and the Memorandum of Appeal dated 25th February, 2025 are referenced
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oyaro v Anayo & another (Environment and Land Appeal E016 of 2025) [2025] KEELC 1268 (KLR)", Case Analysis (2025). Winam SPMC ELC No. 72 of 2018 (appeal thereto; Notice of Motion dated 28th February, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1268/eng@2025-03-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.