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ELCAllowedELC Appeal (Thika); Notice of Motion dated 17/07/2024 arising from MCELC Case No. E4178 of 2022

Okong’o v Kiguru (Environment and Land Appeal E111 of 2024) [2025] KEELC 4111 (KLR)

Environment and Land Court
20 May 2025
2,629 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of the Environment and Land Court at Thika (Mogeni J) on a Notice of Motion dated 17/07/2024 by George Elijah Okong'o, the Plaintiff/Appellant, seeking stay of execution of a judgment of the Magistrate's Court at Milimani in MCELC Case No. E4178 of 2022 delivered on 15/07/2024. The trial court had dismissed the Applicant's suit claiming permanent injunctive relief and a declaration of bona fide ownership of Plot V7329 (Parcel No. Nairobi/Block 136/8477) as an allottee of Embakasi Ranching, and instead allowed the Respondent's Counter-claim as registered proprietor, awarding damages for trespass. The Applicant, who had lived on the property since 2006 and built a family home, contended he faced eviction and had received a Notice to Vacate Land dated 31/07/2024. The Respondent opposed, invoking Order 42 Rule 6(2) and arguing the Applicant was denying him the fruits of the judgment. The court identified the sole issue as whether the Applicant satisfied the Order 42 Rule 6(2) conditions. It found the Application, filed two days after judgment, was made without unreasonable delay; that imminent eviction established substantial loss; and that the Applicant's willingness to abide by the Court's terms satisfied the security requirement. The Application was allowed in terms of prayers 3 and 4, with stay granted pending appeal on condition the Applicant deposits Kshs. 200,000 in court within 45 days, failing which the stay lapses. Costs of the Application were awarded to the Respondent in any event.

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 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

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01

Whether the Application was filed without unreasonable delay

Holding

Yes; the Application was filed two days after judgment.

Reasoning

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.

p. 2
02

Whether the Applicant demonstrated substantial loss

Holding

Yes; imminent eviction from the suit property and the family home established substantial loss.

Reasoning

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.

p. 5
03

Whether the Applicant met the security condition

Holding

Willingness to abide by the Court's terms sufficed; stay granted conditional on a deposit of Kshs 200,000.

Reasoning

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.

p. 5

Legal principles established

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  • 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

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  1. 1.Stay of execution of the Judgment delivered on 15/07/2024 is granted pending hearing and determination of the Appeal
  2. 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. 3.Costs of the Application to the Respondent in any event

The bench

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

majority

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

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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.

Stay of execution of the Judgment delivered on 15/07/2024 is granted pending hearing and determination of the Appeal herein.
p. 5Final orders - stay granted
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.
p. 5Conditional security
Costs of the Application to the Respondent in any event.
p. 5Costs
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.
p. 3Discretionary principle from Butt v Rent Restriction Tribunal

Issues in the judgment

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material

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.

minor

Conflicting quantum of trespass damages awarded by the trial court.

minor

Typographical error in the date of the Applicant's affidavit.

minor

Inconsistency as to which party faces eviction.

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, "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.