Okong’o v Kiguru (Environment and Land Appeal E111 of 2024) [2025] KEELC 4111 (KLR)
The bottom line
#A Kenyan landowner who faced eviction won a pause on the judgment against him by acting fast and agreeing to pay Kshs 200,000 as security.
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 has made up a case for being granted an order of stay of the decision of the lower Court, satisfying the conditions of substantial loss, absence of unreasonable delay, and furnishing of security under Order 42 Rule 6(2)
Key legal issues
#Whether the Application was filed without unreasonable delay
Yes; the Application was filed two days after judgment.
Judgment was delivered on 15/07/2024 and the Applicant filed the Notice of Motion on 17/07/2024, simultaneously with the Memorandum of Appeal. Relying on Utalii Transport v Nic Bank, the court held that delay must be assessed case by case and that a two-day filing did not constitute inordinate or inexcusable delay.
Whether the Applicant demonstrated substantial loss
Yes; imminent eviction from the suit property and the family home established substantial loss.
The Applicant had been served with a Notice to Vacate Land dated 31/07/2024 and eviction summons, had lived on the property since 2006 and built his family home there. The court accepted that losing occupied property of real worth amounts to substantial loss as understood in Rhoda Mukuma and Tropical Commodities Suppliers.
Whether the Applicant met the security condition
Willingness to abide by the Court's terms sufficed; stay granted conditional on a deposit of Kshs 200,000.
Although no security had been provided, the Applicant expressed willingness to abide by any terms imposed. Applying Arun C Sharma on the purpose of security and Order 22 Rule 3, the court conditioned the stay on a deposit of Kshs 200,000 within 45 days, failing which the stay lapses.
Legal principles established
#- An applicant for stay of execution must satisfy the three conditions under Order 42 Rule 6(2): substantial loss, application made without unreasonable delay, and furnishing of security.
- Willingness to abide by the Court's terms can signify readiness to offer security, and the Court may impose conditions under Order 22 Rule 3.
Court orders
#- 1.Stay of execution of the Judgment delivered on 15/07/2024 is granted pending hearing and determination of the Appeal
- 2.The stay is granted on condition that the Applicant deposits in Court security in the sum of Kshs. 200,000/= within forty five (45) days, in default the order of stay will lapse
- 3.Costs of the Application to the Respondent in any event
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrate's Court at Milimani
- MCELC Case No. E4178 of 2022
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending 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.
Stay of execution of the Judgment delivered on 15/07/2024 is granted pending hearing and determination of the Appeal herein.
The stay granted in (a) above is granted on condition that the Applicant deposits in Court security in the sum of Kshs. 200,000/= (Two Hundred Thousand Shillings Only) within forty five (45) days from the date hereof, in default, the order of stay of execution will lapse.
Costs of the Application to the Respondent in any event.
The general principle in granting or refusing a stay is, if there is no other overwhelming hindrance a stay must be granted so that an appeal may not be rendered nugatory should that appeal Court reverse the judge’s discretion.
Issues in the judgment
#Conflicting dates for the trial judgment: the opening paragraph says the ruling was delivered on 15/07/2022 dismissing a suit dated 18/08/2022 (a later date), while the rest of the judgment states the judgment was issued on 15/07/2024.
Conflicting quantum of trespass damages awarded by the trial court.
Typographical error in the date of the Applicant's affidavit.
Inconsistency as to which party faces eviction.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okong’o v Kiguru (Environment and Land Appeal E111 of 2024) [2025] KEELC 4111 (KLR)", Case Analysis (2025). ELC Appeal (Thika); Notice of Motion dated 17/07/2024 arising from MCELC Case No. E4178 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4111/eng@2025-05-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.