Nyakeno & another (Suing as the administrators & legal representatives of the Estate of Margaret Odoyo Nyakeno - Deceased) v Nyidha (Environment and Land Appeal E110 of 2024) [2025] KEELC 1356 (KLR)
The bottom line
#A Kisumu land court refused to re-open a blocked access road during an ongoing appeal, because that would decide the appeal before it was heard.
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 Applicants are entitled to an order directing that the road of access to land parcels Kisumu/Kogony/5551 and 5550 be opened pending hearing and determination of the appeal
- 2.Whether the OCS Kochung Police Post should be ordered to enforce the opening of the public access road pending appeal
- 3.Whether judgment can be entered directing the Respondent to open the public access road
- 4.Who should bear the costs of the application
Key legal issues
#Whether an interlocutory order re-opening the road pending appeal could issue
The application fails because the relief sought mirrors the substantive relief in the appeal; granting it would pre-empt and determine the appeal before hearing
The trial court had found the road illegally created and ordered its closure, and those orders were executed. The appeal challenges that decision and seeks re-opening of the road. An interlocutory order re-opening the road would grant the very relief the appeal seeks, effectively deciding the appeal at the interlocutory stage. Prayer 11 in particular sought judgment, which is a final remedy unavailable on a motion.
Whether a stay of execution pending appeal was available
No stay of execution was sought in the application notwithstanding counsel's submissions
Although counsel for the Applicant described the application as seeking stay of execution pending appeal, the court found no such prayer among the outstanding prayers (4, 7, 10, 11 and 12). The court corrected the mischaracterisation and dealt with the substance of the prayers, which was re-opening of the road and police enforcement.
Whether the mandatory interlocutory injunction threshold was met
The Respondent argued the higher degree of proof for a mandatory interlocutory injunction was not met; the court found no prima facie demonstration and dismissed the application
The Respondent relied on Kenya Breweries Ltd v Washington Okeyo and Giella v Cassman Brown, submitting that a mandatory interlocutory injunction requires a higher degree of proof and that no prima facie case was demonstrated. The court also noted the balance of convenience favoured the Respondent since the road had been deleted by court order.
Legal principles established
#- Interlocutory relief that would effectively grant the substantive relief sought in the appeal cannot be given, as it would determine the appeal before it is heard
- Final orders (judgment) cannot be granted on an interlocutory application
Court orders
#- 1.The application dated 13th January, 2025 is dismissed
- 2.Costs to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Trial court (name not stated)
- Jurisdiction invoked
- Sections 1A, 3, 3A and 80 of the Civil Procedure Act; Order 42 Rule 6 and Order 51 Rule 1, 3 and 4 of the Civil Procedure Rules (arising from an appeal against the decision of the trial court)
Relief refused
#Order directing that the road of access to Kisumu/Kogony/5551 and 5550 be opened pending hearing and determination of the appeal
Granting it would amount to determining the appeal before hearing it
Order that the OCS Kochung Police Post enforce the orders to keep the public access road open
Substance of the prayers is re-opening of the access road, which would pre-empt the appeal
Judgment directing the Respondent to open the public access road
Final orders that can only be granted after hearing the appeal
Costs
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.
What the Appellant is seeking in the appeal ultimately is that the road be re-opened. Prayer 3 in the Memorandum of appeal seeks that Respondent be restrained from blocking the public access road accessing the appellant’s land parcel numbers Kisumu/Kogony/5551 and 5550.
Hence granting the application will amount to determining the appeal before hearing it.
Prayer 11 seeks for judgement directing the Respondent to re-open the road. These are final orders that can only be granted after hearing the appeal.
I find that the application lacks merit. The application is dismissed. Costs to the Respondent. Orders accordingly.
Issues in the judgment
#The ruling is described both as an appeal from a trial court and as having a further appeal pending before the Court of Appeal; the court, case number and parties' names are not stated in the judgment
Counsel described the application as seeking stay of execution although the court found no such prayer
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nyakeno & another (Suing as the administrators & legal representatives of the Estate of Margaret Odoyo Nyakeno - Deceased) v Nyidha (Environment and Land Appeal E110 of 2024) [2025] KEELC 1356 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1356/eng@2025-03-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.