Masarare v Mwita (Environment and Land Appeal E007 of 2026) [2026] KEELC 5350 (KLR)
The bottom line
#A Kenyan court struck out a stay application because the applicant skipped the trial court, confirming you must ask the original court first before seeking a stay on appeal.
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 Preliminary Objection is merited
- 2.Whether the application was properly before this Court, the Applicant having not filed a similar one first in the trial court
- 3.What order this Court should make, including as to costs
Key legal issues
#Whether M.N. Oonge & Co. Advocates were improperly on record without leave under Order 9 Rule 9
Objection failed; an appeal is new proceedings in another court, so new counsel may come on record without leave or notice of change
Applying the Court of Appeal's decision in Wafubwa, the court held that once judgment is entered, an appeal commences new proceedings in a different court with different applicable rules. The Environment and Land Court at Migori is a superior court of record exercising distinct appellate jurisdiction. The strict-compliance authorities concerned changes within continuing proceedings before the same court and were distinguished.
Whether the appellate court can entertain a first-instance application for stay where the trial court was never moved
No; the application was premature and incompetent and was struck out, though a short conditional stay was granted
Order 42 Rule 6(1) vests primary stay jurisdiction in the court that issued the decree. The appellate court's role is supervisory, to review what the trial court has done on a proper application. Allowing parties to leap-frog the trial court would encourage forum shopping. The Applicant never moved the trial court during the 60-day grace period and came 19 days after its lapse with no explanation.
Whether Order 42 Rule 6(6) conferred jurisdiction to grant an injunction
The submission was misconceived because no prayer for injunction was included in the application
Although subrule (6) confers power to grant injunctive relief, the application before the court contained no prayer for injunction. The subrule therefore could not form the basis of conferment of jurisdiction on the court without the appellant first approaching the lower court. The submission was rejected.
Legal principles established
#- An advocate newly instructed to prosecute an appeal is not required to obtain leave or file a notice of change of advocates under Order 9 Rule 9, as an appeal is a commencement of new proceedings
- The appellate court's jurisdiction under Order 42 Rule 6 is supervisory; a party seeking stay of execution must first move the trial court
Court orders
#- 1.The first ground of the Preliminary Objection fails; the firm of M.N. Oonge & Co. Advocates is properly on record for the Applicant in the Appeal
- 2.The application for stay of execution is struck out as premature and incompetent
- 3.A conditional stay of execution of the Judgment and decree of 31st March 2026 in Kehancha ELC Case No. E009 of 2025 granted for fifteen (15) days to enable the Applicant to properly move the trial court; failing which the stay lapses automatically
- 4.The Appellant directed to file a Record of Appeal within thirty (30) days, and having already filed it, to serve it
- 5.The Respondent granted leave within fifteen (15) days to make any relevant application regarding compliance with or competence of the Record of Appeal
- 6.Each party to bear its own costs
- 7.The Appeal admitted to hearing by way of written submissions on 29th October 2026; appellant to file and serve written submissions by 12th September 2026, Respondent by 12th October 2026
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Senior Principal Magistrate's Court at Kehancha
- Kehancha ELC Case No. E009 of 2025
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules 2010; Sections 1A, 1B and 3A of the Civil Procedure Act
Relief refused
#Stay of execution pending appeal
Application premature and incompetent, the Applicant having bypassed the trial court as required by Order 42 Rule 6(1)
Costs
Each party shall bear its own costs
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.
Accordingly, I strike out the application on account of I being prematurely before this Court. However, I grant a conditional stay of execution of the Judgment and decree of 31 st March 2026 in Kehancha ELC Case No. E009 of 2025, for a period of fifteen (15) days from the date of this Ruling.
The application has been lost but for reason of the applicant’s misapprehension of the law but also that the appellant has endeavored to move this court fast, each party shall bear its own costs.
The firm of M.N. Oonge & Co. Advocates is properly on record for the Applicant in this Appeal.
This should not be encouraged by courts at all. There ought to be certainty in the procedure and application of the law.
Issues in the judgment
#Judgment states the 60-day period lapsed on 30th May 2026, but 60 days from 31st March 2026 would end around 30th May 2026; also the appeal was said to be lodged on '30tth April 2026' - internal date consistency not verifiable from the text
The court struck out the application for being premature yet granted a conditional stay of the same judgment, which is arguably inconsistent with holding itself functus on the matter
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Masarare v Mwita (Environment and Land Appeal E007 of 2026) [2026] KEELC 5350 (KLR)", Case Analysis (2026). ELCLA No. E007 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5350/eng@2026-08-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.