Onyango v Owinyo & 2 others (Environment and Land Appeal E058 of 2025) [2026] KEELC 1305 (KLR)

The court set out the conjunctive elements of res judicata from the Benjoh Amalgamated case and found that the parties, the title and the competence of the lower court were all satisfied. However, on comparing the two applications, it noted that the previous stay was sought under Order 22 Rule 25 (stay pending suit against a decree holder) whereas the present one is under Order 42 Rule 6 (stay pending appeal), the previous injunction was temporary while the present one is permanent, and the stay of proceedings is a new relief. These three reliefs are therefore a different relief with different considerations and were not barred.

The court noted that the Appellant specifically sought to stay the orders made in the ruling of 8th October 2025, whose final outcome was dismissal of his application with costs. Citing Western College of Arts and Applied Sciences v EP Oranga, the court held that where the court below has not ordered any party to do anything, refrain from doing anything, or pay any sum, there is nothing to be executed and no stay can issue. The refusal simply leaves the Appellant in the position he was in before coming to court, so substantial loss and nugatory appeal do not arise.

Applying Order 42 Rule 6 and the principles in Global Tours & Travels and William Odhiambo Ramogi, the court found there was a pending appeal which was arguable. The consent order adopted on 20th March 2025, which allegedly handed over the suit property to the Respondents while the suit was pending, was not availed to the court, and it was not clear why the trial magistrate would adopt a consent effectively handing over the property without the Appellant, who claims the land and had filed a counterclaim. If the appeal succeeds and the consent order is set aside, the suit would proceed with all parties defending their claim, so it would not serve the interests of justice for the trial court to continue in the interim.

Relying on Jane Wambui Macharia v Wais Capital Limited, the court held that a permanent injunction determines the rights of the parties completely and usually pre-empts the defendant's right to a trial, so it is granted at the interlocutory stage only in exceptional circumstances - where the case is clear and ought to be decided at once, the act is simple and summary, or the defendant seeks to steal a match. The court found the Appellant demonstrated none of these circumstances and was in fact attempting to have the appeal determined at the interlocutory stage through the back door, and to steal a match on the Respondents.