Kisoso v Kimamet & Totona (Suing as the Legal Representatives of Kiporot Ole Totona alias Singo Arap Totona - Deceased) & 3 others (Environment & Land Case 267 of 2017) [2025] KEELC 3928 (KLR)
The bottom line
#Filing a Notice of Appeal in Kenya does not stop a case automatically or strip the trial court of power to hear stay applications.
What this practically means
#Executive summary
#Key legal issues
#Whether the ELC is functus officio once an appeal is lodged in the Court of Appeal
The court is not functus officio; the de novo hearing order left the matter pending before the ELC and the plaintiff may pursue a stay application either here or in the Court of Appeal
The functus officio doctrine embodies finality: a decision-maker may exercise adjudicative powers only once in relation to the same matter. Here the 19th January 2023 judgment was set aside and the matter ordered to proceed de novo, so nothing final is being re-opened. A Notice of Appeal does not automatically stay proceedings; the plaintiff was entitled to apply to this court for stay of proceedings pending the appeal, and doing so does not contravene judicial hierarchy.
Whether the notice of preliminary objection was properly framed
The objection was defective as it was wordy and blended law with facts and submissions
The court noted the notice was verbose, resembling submissions with authorities, and mixed the preliminary objection with the application. Relying on Oraro v Mbaja, a true preliminary objection must be a pure point of law not blurred with contested factual details. The court confined itself to the functus officio point.
Legal principles established
#- Filing a Notice of Appeal does not operate as an automatic stay of proceedings or execution, and does not divest the trial court of jurisdiction to hear an application for stay of proceedings
- A preliminary objection must raise pure points of law and must not be blurred with facts requiring evidence
Court orders
#- 1.The Notice of Preliminary Objection dated 25th November, 2024 is dismissed with costs
- 2.The Applicant to fix the application for stay of proceedings within 30 days from the date of the ruling
- Jurisdiction invoked
- Not expressly stated; Environment and Land Court exercising original jurisdiction over the suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kisoso v Kimamet & Totona (Suing as the Legal Representatives of Kiporot Ole Totona alias Singo Arap Totona - Deceased) & 3 others (Environment & Land Case 267 of 2017) [2025] KEELC 3928 (KLR)", Case Analysis (2025). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/3928/eng@2025-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.