Kokoreh v Owiyo & another (Environment and Land Appeal E064 of 2024) [2025] KEELC 1353 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant will suffer substantial loss if stay of execution is not granted
- 2.Whether the application was brought without unreasonable delay
- 3.Whether the applicant is willing and able to give security for the due performance of the decree
Key legal issues
#Substantial loss
Substantial loss established because the applicant resides on the suit land and faces eviction under the judgment
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.
Security for due performance
Stay granted on condition that the applicant deposits Kshs.150,000/- in court within 45 days, failing which the stay lapses
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.
Status quo pending appeal
The purpose of the stay is to preserve the prevailing status quo pending the hearing and disposal of the appeal
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.
Legal principles established
#- 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
#- 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.Stay conditional on the applicant depositing Kshs.150,000/- in court as security within 45 days, failing which the stay order lapses
- 3.Costs of the application to the 1st Respondent
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 (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
#Unconditional stay of execution
Stay granted only on condition of depositing security of Kshs.150,000/- within 45 days
Costs of the application to the applicant
Costs awarded to the 1st Respondent
Costs
Costs of the application awarded to the 1st Respondent.
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.
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.
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.
If the eviction is to happen the applicant will no doubt sufier substantial loss.
An order of stay of execution will safe guard the prevailing status quo pending the hearing and disposal of the appeal.
Issues in the judgment
#The applicant's name is never stated in the ruling; the parties are referred to only as applicant and respondents
The ruling states the application is brought 'pursuant to the persons of order 42 Rule 6(1)' - an apparent typographical error for 'provisions of'
The number of the appeal in this court and the case number of this application are not stated in the ruling
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.