Lutta v Olunga (Enviromental and Land Originating Summons 16 of 2020) [2025] KEELC 8220 (KLR)
The bottom line
#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 leave to change his advocates at this stage
- 2.Whether the applicant has met the threshold for grant of orders of stay of execution pending intended appeal and intended review
- 3.Whether the court should grant orders of maintenance of status quo pending intended appeal and intended review
Key legal issues
#Leave to change advocates after judgment
Leave granted; the prayer was unopposed and the right to counsel of one's choice applies
Order 9 Rule 9 requires leave to change advocates after judgment. The court held legal representation by counsel of choice is a constitutional right, the prayer was unopposed, and there was no reason to deny the applicant representation by the incoming firm of Ouma Okutta & Associates Advocates.
Stay of execution pending appeal/review
Refused; a dismissal is a negative order with nothing to stay
Although the applicant invoked Order 42 Rule 6 and the Butt principles on substantial loss, delay and security, the underlying judgment merely dismissed his adverse possession claim. Being a negative order, there was no positive order of the court capable of being stayed, so the prayer failed. No review application was pending either.
Status quo pending appeal to the Court of Appeal
Refused for want of jurisdiction
The court reasoned that status quo orders are in the nature of temporary injunctions under Order 40 Rule 1 and Order 42 Rule 6(7). Those provisions cover pre-determination and appeals from subordinate courts, but no provision empowers this court to grant an injunction pending an appeal to the Court of Appeal. Having conclusively determined the rights of the parties, it cannot revisit the prima facie case.
Legal principles established
#- A dismissal order is a negative order incapable of being stayed
- A court which has conclusively determined the suit cannot revisit the prima facie case question for purposes of an injunction pending appeal; that is for the appellate court
- Change of advocates after judgment requires leave of court under Order 9 Rule 9, and the right to counsel of one's choice supports such leave
Court orders
#- 1.The firm of Ouma Okutta & Associates Advocates is granted leave to come on record for the plaintiff in the place of M. Kiveu & Company Advocates
- 2.The application dated 19th May 2024 is dismissed with costs save for the prayer for change of advocates
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Original civil jurisdiction under the Civil Procedure Act and Civil Procedure Rules (Order 9 Rule 9, Order 40 Rule 1, Order 42 Rule 6); the court held it lacks power to grant injunction pending appeal to the Court of Appeal
Relief refused
#Stay of execution of the judgment and decree of 29th April 2024 pending intended appeal
The judgment was a dismissal; there is no positive order capable of being stayed
Maintenance of status quo pending intended appeal
The court has no jurisdiction to grant an injunction pending hearing of an appeal to the Court of Appeal, having already determined the rights of the parties
Stay of execution and status quo pending intended review
No application for review is pending and no order capable of being stayed was made
Costs
The application is dismissed with costs to the defendant
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.
In the premises, save for the order that the firm of Ouma Okutta & Associates Advocates is granted leave to come on record for the plaintifi in the place of M. Kiveu & Company Advocates in this matter, I find and hold that the application dated 19th May 2024 lacks merit and the same is hereby dismissed with costs.
There is no positive order made by court that is capable of being stayed. In the premises, therefore the prayer for stay of execution pending appeal or review is not merited and the same is therefore declined.
In the premises, I find and hold that this court has no jurisdiction to grant orders of status quo pending hearing of the appeal at the Court of Appeal.
Substantial loss does not represent any particular mathematical formula. Rather, it is a qualitative concept.
Issues in the judgment
#The judgment states the suit was dismissed by judgment delivered on 29th April 2024, but later refers to a judgment of 28th June 2022
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lutta v Olunga (Enviromental and Land Originating Summons 16 of 2020) [2025] KEELC 8220 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8220/eng@2025-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.