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ELCDismissedNot stated on the face of the ruling (appeal before Vihiga High Court; suit referenced as Vihiga High Court Land and Environment Case No. E015/2025)

Ochola & another v Aburili (Suing as the legal administrator of the Estate of the Late Obed Aburili Otenyo - Deceased) (Environment and Land Appeal E015 of 2024) [2026] KEELC 1483 (KLR)

High Court of Kenya
12 March 2026
1,658 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court at Vihiga refused a landowner's injunction and stay of execution because the appeal was already decided and no real loss was proven.

What this practically means

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Executive summary

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This ruling by the High Court at Vihiga (E. Asati, J) determines a Notice of Motion dated 17th November 2025 in which the applicant, whose suit had been dismissed by the court's appellate judgment of 30th October 2025, sought an injunction restraining the respondents from selling the suit land and a stay of execution of that judgment pending an intended appeal to the Court of Appeal. The application was opposed: the respondents argued that a negative order dismissing a suit cannot be stayed, that a similar application had been dismissed by the trial court (raising res judicata under section 7 of the Civil Procedure Act), and that the applicant failed to demonstrate substantial loss or propose security. The court held that on the injunction prayer, its appellate jurisdiction under Order 42 Rule 6(6) of the Civil Procedure Rules was spent: the appeal having been determined on 30th October 2025, the court became functus officio and the applicant's recourse lay in the Court of Appeal. On stay, Order 42 Rule 6(2) requires substantial loss, absence of unreasonable delay, and security. Although the applicant alleged the respondents intended to sell the ancestral land, the supporting messages were unconvincing - one document was untranslated and the other showed no indication that the land was due for sale. Relying on Charles Wahome Gethi and Rhoda Mukuma, the court found the burden of proving substantial loss was not discharged, found the application devoid of merit, declined it, and made no order as to costs.

Questions the Court framed

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

  1. 1.Whether the court, its judgment on the appeal having been delivered on 30th October 2025, still has jurisdiction to grant a temporary injunction under Order 42 Rule 6(6) of the Civil Procedure Rules
  2. 2.Whether the applicant has demonstrated substantial loss, absence of unreasonable delay and security, as required by Order 42 Rule 6(2), to warrant a stay of execution of the judgment pending appeal to the Court of Appeal
  3. 3.Whether the application is res judicata pursuant to section 7 of the Civil Procedure Act, having been made and dismissed before the trial court

Key legal issues

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01

Jurisdiction to grant a temporary injunction in the exercise of appellate jurisdiction after judgment

Holding

The court held the jurisdiction was spent because the appeal had already been determined on 30th October 2025

Reasoning

Order 42 Rule 6(6) empowers the High Court, in the exercise of its appellate jurisdiction, to grant a temporary injunction where the procedure for instituting the appeal has been complied with. In this matter the appeal had already been decided by judgment of 30th October 2025, which allowed the appeal, set aside the trial court's judgment and substituted dismissal of the applicant's suit. Apart from processing costs, no pending business remained; the court was functus officio and the applicant's recourse lay in the Court of Appeal.

p. 3
02

Whether substantial loss was demonstrated to warrant stay of execution under Order 42 Rule 6(2)

Holding

Substantial loss was not demonstrated; the application for stay failed

Reasoning

Under Order 42 Rule 6(2), stay requires substantial loss, absence of unreasonable delay and security. The applicant claimed the land was ancestral and that the respondents planned to sell it, relying on messages. One document was in a foreign language without translation, and the court found no indication in the other document that the land was due for sale. Applying Rhoda Mukuma v John Abuoga, substantial loss is the cornerstone of the jurisdiction and what must be prevented by preserving the status quo; the applicant failed to discharge this burden.

p. 4
03

Whether the application is res judicata under section 7 of the Civil Procedure Act

Holding

Raised by the respondents but the court did not determine it, dismissing the application on jurisdiction and substantial loss grounds instead

Reasoning

The respondents argued that the applicant sought the same order previously dismissed by the trial court, invoking section 7 of the Civil Procedure Act, and relied on Kakamega ELCA No. 35 of 2019. The court's determination rested on lack of jurisdiction under Order 42 Rule 6(6) and failure to prove substantial loss; no express finding was made on res judicata.

p. 3

Legal principles established

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  • Once a court has pronounced judgment on an appeal, it becomes functus officio and its jurisdiction under Order 42 Rule 6(6) to grant a temporary injunction in the exercise of appellate jurisdiction is spent; the party must pursue such relief in the Court of Appeal
  • Substantial loss is the cornerstone of the jurisdiction under Order 42 Rule 6(2) and the burden lies on the applicant to prove it; mere residence on suit land or assertion of intended sale is not enough

Court orders

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  1. 1.The application dated 17th November 2025 is declined for lack of merit
  2. 2.No order 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 (subordinate court) / trial court in Vihiga High Court Land and Environment Case No. E015/2025
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules 2010, the High Court exercising appellate jurisdiction (as a first appeal court) in relation to an application for stay of execution and injunction pending appeal to the Court of Appeal

Relief refused

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Injunction restraining the respondents, their servants, agents and/or any person working under their instructions from selling the suit parcel of land pending the hearing and determination of the appeal to the Court of Appeal

The appeal before the High Court had already been determined on 30th October 2025; the court became functus officio and the jurisdiction under Order 42 Rule 6(6) was spent

p. 3

Stay of execution of the judgment of 30th October 2025 pending the hearing and determination of the appeal to the Court of Appeal

The applicant failed to demonstrate substantial loss as required under Order 42 Rule 6(2); the messages relied on did not show the land was due for sale, and one document was untranslated

p. 4

Costs

No order as to costs.

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.

The court became functus oficio having pronounced its judgment on the appeal. The jurisdiction donated by Order 42 Rule 6 (6) is, in my view, therefore spent.
p. 3Functus officio and spent appellate jurisdiction to grant injunctions
The burden of proof lies with the applicant to prove that the substantial loss will result to him if the order sought is not granted.
p. 4Burden of proof on substantial loss in stay applications
I find that the grounds for the grant of an order of stay of execution, and particularly, substantial loss, have not been demonstrated herein.
p. 4Failure to demonstrate substantial loss
The application having failed to demonstrate the grounds for the grant of the order of stay of execution, I find that the application lacks merit. The application is hereby declined.
Disposition
No order as to costs. Orders accordingly.
p. 4Final orders and costs

Issues in the judgment

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minor

The ruling is dated 12th March 2026 but the respondents' Replying Affidavit was sworn on 12th November 2025, i.e. before the Notice of Motion of 17th November 2025 it opposes, and the respondents' submissions dated 12th January 2026 were filed before the applicant's submissions dated 2nd February 2026 yet are addressed later

minor

The role labels are inconsistent within the judgment: the applicant is described as 'appellant' in the respondents' replying affidavit narrative although the parties are elsewhere styled applicant/respondents

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, "Ochola & another v Aburili (Suing as the legal administrator of the Estate of the Late Obed Aburili Otenyo - Deceased) (Environment and Land Appeal E015 of 2024) [2026] KEELC 1483 (KLR)", Case Analysis (2026). Not stated on the face of the ruling (appeal before Vihiga High Court; suit referenced as Vihiga High Court Land and Environment Case No. E015/2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1483/eng@2026-03-12

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