Mware v Ajode (Environment and Land Appeal E010 of 2025) [2025] KEELC 5232 (KLR)
The bottom line
#The High Court in Kisumu paused an eviction so an appeal can be heard, but only after the appellant 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 would suffer substantial loss if stay of execution is not granted
- 2.Whether the application was made without unreasonable delay
- 3.Whether security for due performance of the decree should be given
Key legal issues
#Substantial loss
The applicant demonstrated substantial loss as eviction from the disputed land would not be adequately compensable in damages
The judgment appealed against directed the applicant's eviction from a disputed piece of land currently in his occupation. Eviction would render the appeal nugatory if it succeeded, since a successful appeal could not restore possession adequately by damages. The respondent's replying affidavit did not deny that substantial loss might result.
Unreasonable delay
There was no unreasonable delay; judgment was delivered 7 February 2025 and the application filed 17 February 2025
The court compared the delivery date of the judgment with the filing date of the application, a ten-day interval, and concluded the application came promptly. This satisfied the second limb of Order 42 Rule 6(2).
Security
Security of Kshs 150,000 in an interest-earning joint account imposed as a condition, failing which stay lapses
The court held it had discretion to order security for due performance of the decree. It fixed a monetary deposit held in joint names of counsel, tying continuance of the stay to compliance within 45 days, thereby balancing both parties' interests.
Legal principles established
#- Conditions for stay of execution under Order 42 Rule 6(2): substantial loss, no unreasonable delay, and security
- Courts must balance the decree-holder's right to enjoy the fruits of judgment with preserving the substratum of the appeal
Court orders
#- 1.An order of stay of execution of the judgment dated 7/2/2025 in Kisumu CMC ELC No E037 of 2020 pending hearing and determination of the appeal, on condition that the applicant deposits Kshs 150,000 as security in an interest-earning account in the joint names of counsel for both parties within 45 days, failing which the stay lapses
- 2.Costs of the application to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Kisumu Chief Magistrate's Court (Environment and Land)
- Kisumu CMC ELC No. E037 of 2020
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 6(2) of the Civil Procedure Rules
Relief refused
#Costs of the application for the applicant
The court awarded costs to the Respondent despite allowing the stay
Costs
Costs to the 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.
An order of stay of execution of the judgement dated 7/2/2025 in Kisumu CMC ELC No E037 of 2020 is hereby issued pending hearing and determination of the appeal herein on condition that the applicant deposits a sum of Kenya shillings one hundred and fifty thousand only (Kshs 150, 000/=) being security, in an interest earning account in the joint names of Counsel for the applicant and Counsel for the Respondent within 45 days hereof failing which the stay of execution order granted herein shall lapse.
While it is important to enable the Respondent to execute the judgement and enjoy the fruits thereof, it is equally important to preserve the substratum of the appeal pending disposal of the appeal.
substantial loss refers to any loss great or small that is of worth or value as distinguished from a loss that is merely nominal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mware v Ajode (Environment and Land Appeal E010 of 2025) [2025] KEELC 5232 (KLR)", Case Analysis (2025). Not stated in the judgment (appeal from Kisumu CMC ELC No. E037 of 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5232/eng@2025-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.