Clementine Anyango Suka & 3 Others v Linus Otieno Aguyo
The bottom line
#The Environment and Land Court in Kisumu stopped the sale or eviction over disputed land until the family's appeal is heard.
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 court, in its appellate jurisdiction, may grant a temporary injunction pending appeal under Order 42 Rule 6(6)
- 2.Whether the applicant satisfied the Giella v Cassman Brown conditions for an interlocutory injunction
- 3.Whether stay of execution of the trial court's judgment and decree should issue pending appeal
Key legal issues
#Power to grant temporary injunction pending appeal
The court has power under Order 42 Rule 6(6) to grant a temporary injunction pending appeal where the procedure for instituting the appeal has been complied with; the Memorandum of Appeal dated 27th November 2024 had been lodged.
The court identified Order 42 Rule 6(6) as the source of its appellate power to grant temporary injunctions. It verified compliance with the appeal-institution procedure by noting the lodged Memorandum of Appeal, thereby satisfying the statutory precondition for exercising that power.
Merits of the injunction and stay application
The application was found to have merit; the court allowed it in terms of prayers 4 and 5, preserving the suit land and staying execution pending appeal.
The court characterised the reliefs sought as preservation measures: the injunction to restrain disposal of the suit land and the stay to prevent execution of the trial judgment. After considering the application, reply and written submissions, it found merit and allowed prayers 4 and 5.
Legal principles established
#- Under Order 42 Rule 6(6), a court exercising appellate jurisdiction may grant a temporary injunction pending appeal, provided the procedure for instituting the appeal has been complied with.
- The Giella v Cassman Brown conditions govern the grant of interlocutory injunctions: prima facie case with probability of success, irreparable injury not compensable in damages, and balance of convenience if in doubt.
Court orders
#- 1.Application allowed in terms of prayers 4 and 5 thereof
- 2.Temporary injunction restraining the Respondent from sub-dividing, selling, disposing of, evicting, transferring or otherwise dealing with suit property SIAYA/NYANDIWA/913 pending hearing and determination of the appeal
- 3.Stay of execution and/or enforcement of the judgment and decree of the Chief Magistrate's Court delivered 28th October 2024 pending determination of the appeal
- 4.Costs of the application to abide the appeal
- 5.Appellant directed to file and serve the Record of Appeal within 21 days
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court at Kisumu
- Kisumu CMC ELC No. 83 of 2018
- Jurisdiction invoked
- Order 42 Rules 6(1)(2) and (6) and Order 51 Rules 1 and 3 of the Civil Procedure (Amended) Rules 2020; sections 1A, 1B and 3A of the Civil Procedure Act, Cap 21
Relief refused
#Costs of the application provided for by the applicant
Court ordered costs to abide the appeal rather than awarding them to the applicant
Costs
Costs of the application shall abide the appeal.
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.
Order 42 Rule 6(6) of the Civil Procedure Rules gives the court, in the exercise of its appellate jurisdiction, power to grant a temporary injunction on such terms as it thinks just, provided the procedure for instituting an appeal from a subordinate court or tribunal has been complied with.
I find that the application has merit and hereby allow it in terms of prayers 4 and 5 thereof. Costs of the application shall abide the appeal.
To expedite the hearing and determination of the appeal, the Appellant is hereby directed to file and serve the Record of Appeal within 21 days hereof.
Issues in the judgment
#Ruling grants 'prayers 4 and 5' though the application enumerates prayers (a)-(c) only
Conflicting dates for the trial judgment: 28th October 2024 in the header, 27th October 2024 in the body
Coram spells 'APPLELANT' in the cause title
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Clementine Anyango Suka & 3 Others v Linus Otieno Aguyo", Case Analysis (2026). ELCLA No. E093 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6250/eng@2026-10-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.