Wasianju v Odulah (Civil Appeal (Application) E521 of 2026) [2026] KECA 2072 (KLR) (25 September 2026) (Ruling) Neutral citation: [2026] KECA 2072 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT KAKAMEGA CIVIL APPEAL (APPLICATION) E521 OF 2026 P NYAMWEYA, RB NGETICH & S RADIDO, JJA SEPTEMBER 25, 2026 BETWEEN TITUS WANYONYI WASIANJU ........................................................... APPLICANT AND FREDRICK KIGWA ODULAH ......................................................... RESPONDENT (An application for an injunction pending the hearing and determination of appeal from the Judgment of the Environment and Land Court at Bungoma (E. C. Cherono J.) delivered on 23rd May 2024 in Bungoma ELC Case No. 7 of 2019) RULING 1. Titus Wanyonyi Wasianju (hereinafter “Titus”) led a Notice of Motion dated 26th July 2026 brought under Rule 5(2)(b) of the Court of Appeal Rules, seeking orders of a temporary injunction restraining Fredrick Kigwa Odulah (hereinafter “Fredrick”) from harvesting, cutting, selling, disposing of, or interfering with crops on land parcel L.R NO. Bungoma/Kiminini/1; entering, constructing upon, dealing with the said property or interfering with the Titus’s quiet possession of the property; and an order compelling Fredrick to deposit all proceeds from any harvested crops into an interest-earning joint account managed by advocates for both parties, pending the hearing and determination of the appeal from the judgment delivered on 23rd May 2024 by the Environment Land Court (ELC) at Bungoma (E. C. Cherono J.) in Bungoma ELC Case No. 7 of 2019. The learned Judge gave the said judgment in favour of the Fredrick, by granting him adverse possession of 2 acres of land registered in Titus’s name. 2. The application is supported by an adavit of even date sworn by Titus. The main grounds for the application are that the intended appeal raises substantial legal issues regarding ownership, adverse possession, procedural fairness, and evaluation of evidence, and the respondent has commenced execution of the decree issued by the ELC by seeking to transfer ownership of the subject land, and https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2072/eng@2026-09-25 1
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harvesting the crop thereon. Lastly, that if execution proceeds, Titus faces imminent threat of eviction and destruction of development on ancestral property, rendering the appeal a mere academic exercise. 3. Titus further averred that if the land is transferred or sold to third parties, his title will be extinguished, rendering the appeal nugatory; Fredrick is actively harvesting and selling mature sugarcane on the land, and because sugarcane is perishable, he will suer irreparable nancial loss and dissipation of funds; since he has possessed and developed the subject land for decades, granting a stay will preserve the subject matter without prejudicing the respondent, and he is willing to comply with security conditions set by the court. 4. Fredrick opposed the application by way of a replying adavit he swore on 18th August 2026, in which he stated that the application was incompetent, for reasons that, following delivery of the subject judgment on 23rd May 2024, he had not been served with a Notice of Appeal, Memorandum of Appeal, or Record of Appeal as required by law, and there is no valid or competent appeal pending upon which the current application can be entertained. 5. We heard the application on this Court’s virtual platform on 18th August 2026, and by that date, the learned counsel appearing, namely Ms Imali Gwehona for the applicant and Mr. Kepha Onyando for the respondent, had not led any written submissions as directed, and they sought and were granted leave to make oral submissions. The applicant is in this regard required to satisfy two conditions for an order of stay of execution to be issued by this Court. Firstly, that his intended appeal is arguable, and secondly, that unless the orders sought are granted, the intended appeal, if successful, will be rendered nugatory. These requirements were amplied by this Court in Stanley Kang’ethe Kinyanjui vs Tony Ketter & 5 Others [2013] eKLR. 6. However, before we proceed to consider the arguments made by the parties in this regard, we need to address the preliminary issue raised by Mr. Onyando that there is no competent appeal pending upon which the court can grant the stay of execution orders. It is notable in this regard that a notice of appeal from the decision sought to be stayed is a condition precedent for the exercise of this Court’s jurisdiction under Rule 5(2)(b) of the Court of Appeal Rules. This Court emphasised in Equity Bank Limited vs West Link Mbo Limited [2013] KECA 320 (KLR) that if there is no notice of appeal lodged, one cannot get an order under Rule 5 (2)(b), because the jurisdiction of the Court of Appeal is limited to hearing appeals, and if there is no existing appeal or no intention to appeal as manifested by lodgment of the notice of appeal, the Court of Appeal would have no business to meddle in the subject decision of the superior Court. 7. Upon inquiring from Ms. Gwehona whether a notice of appeal had been led challenging the judgment delivered on 23rd May 2024 by the Environment Land Court (ELC) at Bungoma (E. C. Cherono J.), Ms. Gwehona referred us to a Notice of Appeal in the Record of Appeal. We have perused the said Notice of Appeal, which is dated 23rd October 2024, and note that it seeks to appeal a ruling delivered by Hon. Justice Enock C. Cherono on 19th September 2024 in Bungoma High Court ELC Case No. 7 of 2019, and not the judgment that is the subject matter of the injunctions sought by Titus, which judgment was delivered on 23rd May 2024. 8. We must therefore down our tools in the absence of a Notice of Appeal appealing the said judgment. We accordingly nd that the Notice of Motion dated 26th July 2026 is not competently before us, and it is hereby struck out with costs to the respondent (Fredrick). 9. Orders accordingly. DATED AND DELIVERED AT KAKAMEGA THIS 25TH DAY OF SEPTEMBER, 2026. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2072/eng@2026-09-25 2
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P.NYAMWEYA …………………………… JUDGE OF APPEAL R. NGETICH …………………………… JUDGE OF APPEAL RADIDO S.OKIYO …………………………… JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2072/eng@2026-09-25 3
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