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ELCPartially AllowedNot stated in the judgment text

Ogutu v Osore & another (Environment and Land Case 605 of 2014) [2025] KEELC 6521 (KLR)

Environment and Land Court
24 September 2025
1,432 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The plaintiff, whose claim of adverse possession over East Wanga/Isongo/977 had been dismissed by this court on 28th June 2022 and who had lodged an appeal to the Court of Appeal, moved the court by Notice of Motion dated 15th October 2024. He sought leave for M/S Marisio Luchivya & Company Advocates to come on record in place of Oscar Wachilonga & Associates Advocates, an inhibition against the title pending appeal, and a temporary injunction restraining the respondent from interfering with his use and occupation of the suit land, contending that the respondent had removed a caution, secured consent to subdivide and was disposing of the property, rendering the appeal nugatory. The respondent opposed, arguing the application was defective and unsupported by evidence of any dealings. The court allowed the change of advocates, holding that representation by counsel of choice is a constitutional right and Order 9 Rule 9 leave was merited. On the substantive prayers, the court held that while it may grant injunctions in the exercise of its original jurisdiction or appellate jurisdiction over subordinate courts under Order 40 Rule 1 and Order 42 Rule 6(7) of the Civil Procedure Rules, and may grant inhibition under Section 68 of the Land Registration Act, it has no power to grant an inhibition or temporary injunction pending an appeal to the Court of Appeal; its only available intervention is stay of execution. Having conclusively determined the parties' rights, the court could not revisit the prima facie case question, which is for the Court of Appeal. The application was dismissed with costs, save for the change-of-advocates prayer.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 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

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01

Whether the court has power to grant an inhibition or temporary injunction pending hearing of an appeal to the Court of Appeal

Holding

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

Reasoning

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.

p. 4
02

Whether the plaintiff should be granted leave to change advocates after judgment under Order 9 Rule 9

Holding

Yes - representation by counsel of one's choice is a constitutional right and there was no reason to refuse leave

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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. 2.The application dated 15th October 2024 otherwise dismissed with costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

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

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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

p. 4

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

p. 4

Costs

The application dismissed with costs (costs of the application to the respondent); the change-of-advocates prayer allowed

Quotable passages

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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.
p. 4Jurisdiction - injunction pending appeal
Stay pending appeal and temporary injunction pending appeal are two difierent orders.
p. 4Distinction between stay and injunction pending appeal
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.
p. 4Prima facie case cannot be re-opened after substantive judgment
I find and hold that the application dated 15th October 2024 lacks merit and the same is hereby dismissed with costs.
p. 4Final orders - dismissal

Issues in the judgment

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minor

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

minor

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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.