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ELCDismissedNot stated in the extract (Kisumu Environment and Land Court suit, judgment delivered 28th January 2025)· [2025] KEELC 7094 (KLR)

Ominde v Odongo; Odongo (Plaintiff to the Counterclaim); Ominde & 3 others (Defendant to the Counterclaim) (Environment and Land Case 300 of 2016) [2025] KEELC 7094 (KLR)

Environment and Land Court of Kenya
16 October 2025
3,645 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Kisumu Environment and Land Court refused to pause execution of a judgment cancelling a lakeside plot title because the appeal notice was defective and no real loss was shown.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kisumu determines the Plaintiff's Notice of Motion dated 19th February 2025 seeking a stay of execution of the court's judgment delivered on 28th January 2025, in which the Plaintiff's claim for trespass over Plot Kisumu/Nyalenda "B"/1508 was dismissed and the Defendant's counter-claim succeeded, with orders cancelling the entries creating Plot No. 1508 and restoring it to lake riparian reserve. The application was brought under Order 42 Rule 6 of the Civil Procedure Rules pending an intended appeal to the Court of Appeal. The Defendant opposed it as an abuse of process that failed the stay threshold. The court applied Halai & another v Thornton & Turpin (1963) Ltd and Kenya Shell Limited v Karuga on the conditions for stay: sufficient cause, substantial loss, security, and absence of unreasonable delay. It held that the Plaintiff's notice of appeal, which referenced a purported judgment of 28th February 2025 rather than the judgment of 28th January 2025 sought to be stayed, was defective and could not be deemed an appeal under Order 42 Rule 6(4). Even on the merits, the court found no substantial loss: Plot No. 1508 is unoccupied, was found wholly covered by lake water on a site visit, and is protected as a riparian reserve, so it would be recoverable should the Plaintiff succeed on appeal. The application was dismissed with costs to the Defendant.

Key legal issues

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01

Whether the notice of appeal could anchor the stay application

Holding

A notice of appeal against a judgment delivered on 28th February 2025 cannot support a stay of a judgment delivered on 28th January 2025; the defective notice is not a deemed appeal under Order 42 Rule 6(4).

Reasoning

Order 42 Rule 6(4) deems an appeal to the Court of Appeal filed upon lodging a notice of appeal under the Court of Appeal Rules. The Plaintiff's notice referenced a judgment dated 28th February 2025 whereas the judgment sought to be stayed was delivered on 28th January 2025. Counsel conceded the point could be taken up with the Court of Appeal. A notice not compliant with the Court of Appeal Rules cannot be deemed an appeal for stay purposes.

p. 7
02

Whether the Plaintiff would suffer substantial loss if stay was refused

Holding

No substantial loss was demonstrated because Plot No. 1508 is unoccupied, wholly under lake water, and protected as a riparian reserve; the Plaintiff could recover it on successful appeal.

Reasoning

The court had found in the judgment that Plot No. 1508 was fraudulently created from the Lake Victoria riparian reserve and, on a site visit, was completely covered with lake water. As a riparian reserve it is protected and cannot be interfered with by anyone. The Plaintiff does not occupy it, so cancelling the title deprives him of nothing he possesses, and the land is recoverable should he succeed on appeal.

Legal principles established

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  • A defective notice of appeal cannot be deemed an appeal under Order 42 Rule 6(4) of the Civil Procedure Rules and cannot support an application for stay of execution pending appeal.
  • An applicant for stay pending appeal must establish sufficient cause, substantial loss, furnish security, and make the application without unreasonable delay.

Court orders

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  1. 1.The Notice of Motion application dated 19th February 2025 is dismissed with costs to the Defendant
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal to the Court of Appeal)

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, "Ominde v Odongo; Odongo (Plaintiff to the Counterclaim); Ominde & 3 others (Defendant to the Counterclaim) (Environment and Land Case 300 of 2016) [2025] KEELC 7094 (KLR)", Case Analysis (2025). Not stated in the extract (Kisumu Environment and Land Court suit, judgment delivered 28th January 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7094/eng@2025-10-16

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.