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ELCDismissedNotice of Motion dated 5th September 2025 in the Appeal arising from Siaya ELC Case 17 of 2022

Kangai & 4 others v Oddenyo & 2 others (Environment and Land Appeal E042 of 2025) [2026] KEELC 1454 (KLR)

Environment and Land Court
11 March 2026
2,009 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Siaya refused to pause a land judgment because the family appealing it failed to prove they would actually suffer substantial loss.

What this practically means

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Executive summary

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The Environment and Land Court at Siaya, per A. E. Dena J, delivered this ruling on 11th March 2026 on the appellants' Notice of Motion dated 5th September 2025 seeking stay of execution of the judgment in Siaya ELC Case 17 of 2022 delivered on 5th August 2025. The judgment had granted the respondents permanent injunction against the 2nd to 5th appellants and eviction-type reliefs, while allowing the 1st applicant, an elderly woman, to remain in the patriarch's house with use of half an acre. The applicants argued, under Order 42 Rule 6 of the Civil Procedure Rules, that substantial loss would ensue because the 1st applicant is aged and cared for by the 5th appellant who must leave, that the appeal is arguable citing Achayo v Oyugi, that there was no inordinate delay, and that the suit property remains subject to succession proceedings in Nairobi Succession Cause No. 864 of 2009. The respondents, relying on Samvir Trustee Limited v Guardian Bank Ltd, contended that no irreparable loss was shown, no security was offered, and that a successful litigant is entitled to the fruits of judgment. The court framed a single issue: whether the application met the requirements for stay of execution. Applying Vishram Ravji Halai v Thornton & Turpin and James Wangalwa v Agness Naliaka Cheseto, the court held that substantial loss was not proved: the 1st applicant was not ordered out of the property, the injunction does not bar the appellants from entering to support her, and no deposition showed the 5th appellant resides on the land. The court declined to consider security or timeliness and dismissed the application with no order as to costs given the parties' close kinship.

Questions the Court framed

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

  1. 1.Whether the application meets the requirements for the grant of orders of stay of execution pending appeal

Key legal issues

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01

Whether the applicants proved substantial loss to warrant stay of execution under Order 42 Rule 6

Holding

No; substantial loss was not proved as the 1st applicant was not ordered out of the property and the injunction does not prevent the appellants entering to support her

Reasoning

The trial court allowed the 1st applicant to remain in the patriarch's house with ½ an acre. The permanent injunction binds the 2nd - 5th appellants but does not prevent them entering that portion to care for her. The supporting affidavit disclosed no deposition showing the 5th appellant resides on the suit property, and submissions cannot substitute evidence.

p. 4
02

Whether the court should determine the merits of the appeal in a stay application

Holding

No; the court confines itself to the orders sought in the application

Reasoning

The parties largely argued the merits of the appeal in their affidavits, but the court held that in a stay application it does not delve into the merits of the pending appeal.

p. 3

Legal principles established

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  • Substantial loss must be proved, not merely alleged, to obtain stay of execution pending appeal
  • Submissions cannot take the place of evidence

Court orders

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  1. 1.The Notice of Motion dated 5th September 2025 is dismissed
  2. 2.No orders as to costs

The bench

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

majority

Wrote the judgment

On appeal from
trial court (Siaya ELC Case 17 of 2022)
Siaya ELC Case 17 of 2022
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

Relief refused

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Stay of execution of the trial court judgment dated 5/8/2025 pending appeal

Substantial loss was not proved; the 1st applicant remains on the property with ½ an acre and the permanent injunction does not bar entry to support her

p. 4

Costs

There shall be no orders as to costs noting that the parties are close relatives.

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.

This court is not persuaded that substantial loss has been proved to warrant the grant of the orders for stay of execution.
p. 4substantial loss not proved
The upshot of the foregoing is that I find no merit in the application dated 5th September 2025. It is hereby dismissed. There shall be no orders as to costs noting that the parties are close relatives.
p. 4disposition
I must reiterate that submissions cannot take the place of evidence – see Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another [2014] eKLR.
p. 4submissions vs evidence

Issues in the judgment

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minor

Application date internally inconsistent: filed 5th September 2025 but submissions state 'the application having been filed on 4/09/2025'

minor

The citation for Vishram Ravji Halai refers to Order 41 rule 6, noted in the judgment itself as '(sic)', while the operative provision is Order 42 Rule 6

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, "Kangai & 4 others v Oddenyo & 2 others (Environment and Land Appeal E042 of 2025) [2026] KEELC 1454 (KLR)", Case Analysis (2026). Notice of Motion dated 5th September 2025 in the Appeal arising from Siaya ELC Case 17 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1454/eng@2026-03-11

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