Okech (Suing as the Legal Representative to the Estate of Boaz Okech Okech (alias Okech Okech Owuor (Deceased)) v Ombago (Sued in his Individual Capacity and as Legal Representative of the Estate of Ombago Ogongo (alias Alex Ombago Ogongo (Deceased)) & another (Environment & Land Case E002 of 2023) [2025] KEELC 4104 (KLR)
The bottom line
#Kenya's Environment and Land Court in Siaya dismissed a request to pause a land case pending appeal, confirming such stays need exceptional circumstances.
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 threshold for grant of stay of proceedings pending appeal
Key legal issues
#Whether the Applicant met the threshold for stay of proceedings pending appeal
The application was dismissed; no justification or exceptional circumstances were demonstrated warranting a stay of proceedings
The court found the application rested largely on the merits of the appeal and the fate of a consent order, matters not appropriate for determination at the interlocutory stage. Since the ruling appealed was not a final determination and all issues remained alive for the main suit, the preferable course was to proceed to full hearing, avoiding piecemeal determinations, with any appeal thereafter disposed of under one roof by the Court of Appeal.
Whether the substantial loss requirement under Order 42 Rule 6(2) applies to stay of proceedings
No; the substantial loss criteria attach only to stay of execution, not to stay of proceedings
Reading Order 42 Rule 6 as a whole, the court distinguished the two limbs of the rule: stay of execution and stay of proceedings. The conditions in sub-rule (2), including demonstration of substantial loss, apply only to stay of execution. The applicant's submissions on non-pecuniary loss arising from the alleged loss of ancestral land therefore could not sustain an application for stay of proceedings.
Whether the validity of the appeal filed at the Court of Appeal could be determined by this court
No; questions of whether the appeal was properly filed fall within the jurisdiction of the Court of Appeal
The respondent argued the appeal was filed out of time without leave and was void ab initio. The court held that since the memorandum of appeal and attendant documents were already before the Court of Appeal, the propriety of the appeal was a matter for that court, not the trial court, and declined to make any finding on the issue.
Legal principles established
#- Stay of proceedings is discretionary and must be exercised judiciously in the interests of justice, with a high threshold requiring demonstration of exceptional circumstances
- The substantial loss criteria under Order 42 Rule 6(2) apply solely to stay of execution, not stay of proceedings
- A court whose decision is under appeal cannot comment on the arguability of the appeal against its own ruling
Court orders
#- 1.The application dated 19/09/2024 seeking stay of proceedings pending appeal is dismissed
- 2.Costs of the application awarded to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Sections 1A, 1B, 3A of the Civil Procedure Act and Order 42 Rule 6(1) of the Civil Procedure Rules
Relief refused
#Stay of proceedings in this matter pending the hearing and determination of Civil Appeal No. E 183 of 2024 at the Court of Appeal at Kisumu
No justification or special circumstances warranting a stay; the ruling appealed is interlocutory, not a final determination, and all issues remain open for determination at the main suit with any appeal to be dealt with under one roof by the appellate court
Costs
The application is dismissed with 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.
The application is hereby dismissed with costs to the Respondent who has participated in this application.
the threshold for grant of orders of stay of execution clearly has been set very high and this is why an applicant must demonstrate exceptional circumstances to warrant stay of proceedings.
the court should essentially weigh the pros and cons of granting or not granting the order.
The law has made provision for an applicant to have two bites at the cherry if I may say so. The first to apply for stay before the court that has delivered the impugned decision or apply for the same at the Court of appeal where the decision is being appealed.
Issues in the judgment
#Case number of the suit is not stated anywhere in the judgment; only the notice of motion date is given
The court refers to quoting from William Odhiambo Ramogi (supra) but the quoted passage does not appear in the judgment text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okech (Suing as the Legal Representative to the Estate of Boaz Okech Okech (alias Okech Okech Owuor (Deceased)) v Ombago (Sued in his Individual Capacity and as Legal Representative of the Estate of Ombago Ogongo (alias Alex Ombago Ogongo (Deceased)) & another (Environment & Land Case E002 of 2023) [2025] KEELC 4104 (KLR)", Case Analysis (2025). Not stated in the judgment extract (Notice of Motion dated 19/09/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4104/eng@2025-05-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.