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ELCPartially AllowedNot stated on the face of the ruling (appeal from Kisumu CMC MC ELC/15/2019)

Kokoreh v Owiyo & another (Environment and Land Appeal E064 of 2024) [2025] KEELC 1353 (KLR)

Environment and Land Court (High Court), Kisumu
20 March 2025
1,003 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court stopped a land eviction until the appeal is decided, but only because the homeowner deposits Kshs.150,000 as security within 45 days.

What this practically means

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Executive summary

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This ruling by E. Asati, Judge, at Kisumu determines a Notice of Motion dated 2nd December 2024 seeking stay of execution of a judgment dated 26th July 2024 of the Chief Magistrate's Court at Kisumu (Kisumu CMC MC ELC/15/2019) and the decree therein, pending the hearing and determination of the applicant's appeal. The application was brought under Order 42 Rule 6(1), Order 51 Rules 1 & 3 of the Civil Procedure Rules 2010 and sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act, and was opposed by the 1st Respondent, Kefa Odhiambo Owiyo, through a Replying Affidavit sworn on 25th January 2025. The underlying judgment ordered the applicant's eviction from parcel No. Kisumu/Nyalunya/5831, conditional upon the Respondent paying the applicant Kshs.233,000/-. The applicant argued that the Respondent had begun sub-dividing and disposing of portions of the land, that eviction would cause him irreparable loss having lived on the land for over 12 years and buried his children there, and that a prior stay application before the trial court had been dismissed. The Respondent contended that no eviction process was underway, no evidence of sub-division was shown, and the application was brought after a two-month delay. Applying the Order 42 Rule 6 thresholds, the court found substantial loss established because the applicant resides on the land and faces eviction, and held that absent a stay the Respondent could initiate execution at any time upon satisfying the judgment conditions. The court allowed the application, granting a stay of execution pending appeal on condition that the applicant deposits Kshs.150,000/- in court as security within 45 days, failing which the stay lapses, and awarded costs of the application to the 1st Respondent.

Questions the Court framed

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

  1. 1.Whether the applicant will suffer substantial loss if stay of execution is not granted
  2. 2.Whether the application was brought without unreasonable delay
  3. 3.Whether the applicant is willing and able to give security for the due performance of the decree

Key legal issues

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01

Substantial loss

Holding

Substantial loss established because the applicant resides on the suit land and faces eviction under the judgment

Reasoning

The court found it undisputed that the applicant resides on the suit land and that the judgment of 26th July 2024 ordered his eviction, conditional on the Respondent paying him Kshs.233,000/-. Eviction would cause substantial loss, depriving him of the home he has lived in for over 12 years where he buried his children. The prospect of imminent execution satisfied the first condition under Order 42 Rule 6.

p. 2
02

Security for due performance

Holding

Stay granted on condition that the applicant deposits Kshs.150,000/- in court within 45 days, failing which the stay lapses

Reasoning

Order 42 Rule 6 requires security as a condition for stay. The applicant had expressed willingness to comply with any condition the court would impose. The court exercised its discretion to fix security at Kshs.150,000/-, well below the Kshs.233,000/- the Respondent is to pay under the decree, and gave a 45-day window with automatic lapse on default.

p. 3
03

Status quo pending appeal

Holding

The purpose of the stay is to preserve the prevailing status quo pending the hearing and disposal of the appeal

Reasoning

The court reasoned that an order of stay safeguards the prevailing status quo pending the appeal, preventing the Respondent from executing the decree, sub-dividing or disposing of portions of the suit land, which would render the appeal nugatory. The applicant's demonstrated willingness to comply with conditions supported the exercise of discretion in his favour.

p. 3

Legal principles established

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  • An applicant for stay of execution pending appeal must demonstrate substantial loss, that the application was made without unreasonable delay, and must offer security for due performance of the decree
  • In the absence of a stay order, the absence of an ongoing execution process does not defeat an application, as the decree-holder may commence execution at any time

Court orders

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  1. 1.An order of stay of execution of the trial court's judgement dated 26th July 2024 together with the decree therein granted pending hearing and determination of the appeal
  2. 2.Stay conditional on the applicant depositing Kshs.150,000/- in court as security within 45 days, failing which the stay order lapses
  3. 3.Costs of the application to the 1st Respondent

The bench

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

majority

Wrote the judgment

On appeal from
Chief Magistrate's Court at Kisumu (CMC ELC)
Kisumu CMC MC ELC/15/2019
Jurisdiction invoked
Order 42 Rule 6(1), Order 51 Rules 1 & 3 of the Civil Procedure Rules 2010; sections 1A, 1B, 3, 3A & 63(e) of the Civil Procedure Act

Relief refused

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Unconditional stay of execution

Stay granted only on condition of depositing security of Kshs.150,000/- within 45 days

p. 3

Costs of the application to the applicant

Costs awarded to the 1st Respondent

p. 3

Costs

Costs of the application awarded to the 1st Respondent.

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.

For the foregoing reasons the court finds that the application has merit and hereby allows it as follows: a. An order of stay of execution of the trial court's judgement dated 26th July 2024 together with the decree therein is hereby granted pending hearing and determination of the appeal on condition that the applicant deposits a sum of Kshs.150,000/- in court as security within 45 days hereof failing which the stay order hereby granted shall lapse.
p. 3Final orders - stay of execution granted on security condition
To succeed in an application for stay of execution pending appeal, an applicant must demonstrate that unless the order of stay of execution is granted, he/she will sufier substantial loss, that he/she has brought the application without unreasonable delay and should give security for the due performance of such decree or order as may ultimately be binding on him/her.
p. 2Threshold conditions for stay of execution under Order 42 Rule 6
If the eviction is to happen the applicant will no doubt sufier substantial loss.
p. 2Substantial loss established by threatened eviction from residence
An order of stay of execution will safe guard the prevailing status quo pending the hearing and disposal of the appeal.
p. 3Purpose of stay - preservation of status quo pending appeal

Issues in the judgment

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minor

The applicant's name is never stated in the ruling; the parties are referred to only as applicant and respondents

minor

The ruling states the application is brought 'pursuant to the persons of order 42 Rule 6(1)' - an apparent typographical error for 'provisions of'

minor

The number of the appeal in this court and the case number of this application are not stated in the ruling

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, "Kokoreh v Owiyo & another (Environment and Land Appeal E064 of 2024) [2025] KEELC 1353 (KLR)", Case Analysis (2025). Not stated on the face of the ruling (appeal from Kisumu CMC MC ELC/15/2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1353/eng@2025-03-20

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