Opande & 2 others v Onyango & Wandiege (As Administrators of the Estate of John Onyango Ndege) & 4 others (Environment and Land Case 58 of 2019) [2025] KEELC 4945 (KLR)
The bottom line
#The High Court in Kisumu paused eviction proceedings against landowners, but only after they promised to deposit Kshs 300,000 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 application for stay of execution satisfies the conditions in Order 42 Rule 6(2) of the Civil Procedure Rules 2010
- 2.Whether substantial loss may result to the Applicants if stay is not granted
- 3.Whether the application was made without unreasonable delay
- 4.Whether the Applicants have offered security for the due performance of the decree
Key legal issues
#Conditions for grant of stay of execution under Order 42 Rule 6(2)
The application satisfied the conditions: substantial loss (possible eviction), no unreasonable delay, and an undertaking to give security.
The court set out the twin conditions of Order 42 Rule 6(2) - substantial loss, application without unreasonable delay, and security. The Applicants demonstrated that execution would lead to eviction, rendering the appeal nugatory; a Notice of Appeal had been lodged, deeming the appeal filed under Rule 6(4); and they undertook to deposit security as the court ordered. The court accordingly allowed the application with conditions.
Whether an appeal had been filed for purposes of Order 42 Rule 6
A Notice of Appeal dated 29th January 2025 was on the court file and received by the Deputy Registrar on 6th February 2025, and under Order 42 Rule 6(4) the Applicants are deemed to have filed an appeal.
Respondents argued no appeal had been filed. The court perused the file, found the Notice of Appeal dated 29th January 2025 and duly received on 6th February 2025, and applied Order 42 Rule 6(4), which deems an appeal filed once notice of appeal is given under the Court of Appeal Rules. The stay therefore pends the appeal to the Court of Appeal.
Legal principles established
#- An appeal to the Court of Appeal is deemed filed when notice of appeal has been given under that Court's Rules.
- Where execution would render a proposed appeal nugatory, a stay of execution may properly be granted.
Court orders
#- 1.An order of stay of execution of the judgment granted pending hearing and determination of the appeal to the Court of Appeal, on condition that the Applicants deposit Kshs 300,000 as security in an interest-earning account in the joint names of Counsel for the Applicants and Counsel for the Respondents within 45 days, failing which the stay shall lapse
- 2.Costs of the application to the Plaintiffs/Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 42 Rule 6(1) & (2) of the Civil Procedure Rules 2010
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.
An order of stay of execution of the judgement herein is hereby granted pending hearing and determination of the appeal to the Court of Appeal on condition that the applicants deposit the sum of Kenya shillings three hundred thousand only (Kshs 300000) as security in an interest earning account in the joint names of Counsel for the applicants and Counsel for the Respondents within 45 days of the date hereof failing which the stay of execution order herein granted shall lapse.
" if it is shown that execution would render a proposed appeal nugatory then a stay can properly be granted."
Costs of the application to the Plaintifis/Respondents.
Issues in the judgment
#Judgment refers to the Court of Appeal Rules by 'Order' numbers (Order 77 Rules 1, 2 and 3 and Order 84) rather than the usual Rule numbers, as submitted by the Respondents; not resolved by the court.
Conflicting dates given for the Notice of Appeal - the Applicants stated it was filed on 25th January 2025, while the court file shows it dated 29th January 2025 and received on 6th February 2025.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Opande & 2 others v Onyango & Wandiege (As Administrators of the Estate of John Onyango Ndege) & 4 others (Environment and Land Case 58 of 2019) [2025] KEELC 4945 (KLR)", Case Analysis (2025). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4945/eng@2025-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.