Ogutu v Osore & another (Environment and Land Case 605 of 2014) [2025] KEELC 6521 (KLR)
The bottom line
#After losing a land case in Kenya, you can only ask the trial court for a stay of execution pending appeal—not an injunction or inhibition, which is the appeal court's domain.
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 deserves the orders sought, including leave for a new firm of advocates to come on record, and inhibition and temporary injunction pending appeal to the Court of Appeal
Key legal issues
#Whether the court has power to grant an inhibition or temporary injunction pending hearing of an appeal to the Court of Appeal
No - the court has power to grant injunction only in the exercise of its original or appellate (subordinate court) jurisdiction; its only intervention in relation to an appeal to the Court of Appeal is stay of execution
The court examined Order 40 Rule 1 and Order 42 Rule 6(7) of the Civil Procedure Rules and Section 68 of the Land Registration Act. Order 40 Rule 1 permits temporary injunction in suits where property is in danger of alienation, and Order 42 Rule 6(7) permits injunction in the exercise of appellate jurisdiction over subordinate courts. There is no provision empowering the court to grant an injunction pending an appeal to the Court of Appeal; only stay of execution.
Whether the plaintiff should be granted leave to change advocates after judgment under Order 9 Rule 9
Yes - representation by counsel of one's choice is a constitutional right and there was no reason to refuse leave
Order 9 Rule 9 requires that after judgment a party changing advocate or acting in person must obtain leave of court. The court held that legal representation by counsel of one's choice is a constitutional right, and absent any reason to deny the applicant representation by the incoming firm, the prayer was merited and was allowed.
Legal principles established
#- A court from whose decision an appeal is preferred to the Court of Appeal may grant stay of execution pending appeal, but has no jurisdiction to grant a temporary injunction pending appeal
- Where a court has substantively determined the rights of the parties, it cannot revisit whether the applicant has a prima facie case for an injunction; that is for the appellate court
Court orders
#- 1.Leave granted to the firm of Marisio Luchivya & Company Advocates to come on record for the plaintiff in place of Oscar Wachilonga & Associates Advocates
- 2.The application dated 15th October 2024 otherwise dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original jurisdiction of the Environment and Land Court; application under Order 9 Rule 9, Order 40 Rule 1 and Order 42 Rule 6(7) of the Civil Procedure Rules and Section 68 of the Land Registration Act
Relief refused
#Order of inhibition against title No. East Wanga/Isongo/977 pending the hearing of the appeal to the Court of Appeal
The court has no jurisdiction to grant inhibition pending hearing of an appeal to the Court of Appeal
Temporary injunction restraining the respondents from interfering with the applicant's use and occupation of the suit land pending appeal
The court's power is limited to stay of execution pending appeal; an injunction pending appeal is not within its jurisdiction, and the rights of the parties have already been determined
Costs
The application dismissed with costs (costs of the application to the respondent); the change-of-advocates prayer allowed
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.
There is no provision granting power to this court to grant an injunction pending hearing of an appeal to the Court of Appeal.
Stay pending appeal and temporary injunction pending appeal are two difierent orders.
the court having determined the rights of parties substantively, fully and conclusively having heard parties on merit, cannot revert to the issue of whether or not the applicant has a prima facie case.
I find and hold that the application dated 15th October 2024 lacks merit and the same is hereby dismissed with costs.
Issues in the judgment
#The judgment refers to a prior judgment of 28th June 2022 and a notice of appeal dated 18th July 2022, but the case number and details of the suit and appeal are not stated in the judgment text
Judgment date appears in the header as 2025 but the notice of motion is dated October 2024 with grounds of opposition of November 2024; delivery date is 24th September 2025, a long interval
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ogutu v Osore & another (Environment and Land Case 605 of 2014) [2025] KEELC 6521 (KLR)", Case Analysis (2025). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6521/eng@2025-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.