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ELCAllowedNot stated in the judgment

Osaga & 4 others v Marwanga (Environment and Land Appeal 8 of 2023) [2025] KEELC 5605 (KLR)

High Court of Kenya
15 July 2025
2,569 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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A Kenyan family facing eviction won extra time: the High Court halted execution of an eviction order while they appeal, if they pay Kshs 400,000 within 21 days.

What this practically means

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Executive summary

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By Notice of Motion dated 26th February 2025, the Applicants sought a stay of execution of the judgment delivered on 19th February 2025 pending an intended appeal to the Court of Appeal. The judgment under appeal had reversed the Magistrate's Court in SPM ELC No. 1 of 2020, dismissed the Applicants' counterclaim founded on adverse possession over LR No. Bugumbe/Masaba/3xx, granted a permanent injunction and ordered their eviction, with costs. The Applicants, who deponed to over four decades of occupation of the suit land, argued substantial loss, no unreasonable delay, and readiness to offer security, relying on Order 42 Rule 6(2) of the Civil Procedure Rules. The Respondent opposed, contending that the court was functus officio, that no stay lies on a negative order, that no draft memorandum of appeal, decree or request for proceedings had been annexed, and that the intended appeal was frivolous; he sought dismissal with costs and proposed Kshs 1,000,000 as security for costs and mesne profits. The court framed a single issue: whether stay should be granted. Applying Order 42 Rule 6(2) and the Butt v Rent Restrictions Tribunal principles, it found substantial loss would ensue from eviction given the Applicants' long occupation, that the eight-day filing gap was timeous, and that the offer of security sufficed under the Focin Motorcycle decision. The application was allowed: stay of execution was granted conditioned on the Applicant depositing Kshs 400,000 in court within 21 days and filing and serving the Record of Appeal within the stated period, failing which the stay would lapse automatically.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Applicants should be granted stay of execution pending appeal

Key legal issues

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01

Whether the Applicants demonstrated substantial loss warranting stay of execution pending appeal

Holding

The court found the Applicants will suffer substantial loss if eviction proceeds, considering their long occupation of the suit land

Reasoning

The applicant still resided on the suit land pursuant to orders issued on 19th February 2025, and a pending eviction existed. The court took into account the period the Applicants had occupied the land, holding that eviction would cause substantial loss and render the intended appeal nugatory.

p. 5
02

Whether the application was filed without unreasonable delay

Holding

The delay of eight days between judgment (19th February 2025) and filing (27th February 2025) was not unreasonable

Reasoning

The impugned judgment was delivered on 19th February 2025 and the application filed on 27th February 2025. The court held the application was timeously filed, satisfying the delay limb of Order 42 Rule 6(2).

p. 5
03

Whether the Applicants satisfied the security condition

Holding

An offer to abide by any security the court directs suffices; the court imposed a deposit of Kshs 400,000 within 21 days

Reasoning

Relying on Focin Motorcycle Co. Limited v Ann Wambui Wangui, the court held that where the applicant proposes to provide security it is a mark of good faith, and the applicant need only state readiness to provide security, the form being at the court's discretion. The applicants' offer satisfied this ground.

p. 5

Legal principles established

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  • Stay of execution pending appeal is a discretionary power to be exercised so as not to prevent an appeal, guided by the Butt v Rent Restrictions Tribunal principles
  • Substantial loss must be demonstrated beyond the mere fact that execution is likely; loss that would render the appeal nugatory must be shown
  • An offer to provide security by the applicant is sufficient to satisfy the security condition of Order 42 Rule 6(2); the nature of the security is at the court's discretion

Court orders

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  1. 1.Stay of execution of the judgment delivered on 19/2/2025 pending the hearing and determination of the intended appeal
  2. 2.Applicant to deposit Kenya Shillings four hundred thousand (Kshs 400,000/=) in Court within twenty one (21) days
  3. 3.Applicant to file and serve the Record of Appeal within the next thirty (60) days since proceedings are already typed
  4. 4.In default of any one of the two conditions or both, the stay of execution granted shall lapse automatically

The bench

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

majority

Wrote the judgment

On appeal from
High Court of Kenya (sitting on appeal from the Magistrate's Court in SPM ELC No. 1 of 2020)
Not stated (judgment delivered 19th February 2025)
Jurisdiction invoked
Order 42 Rule 6(2) of the Civil Procedure Rules

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.

Upon considering the pleadings and the submissions, I find that the application is merited and hereby grant stay of execution of the judgment delivered on 19/2/2025 pending the hearing and determination of the intended appeal.
p. 5Grant of stay pending appeal
The stay is granted on condition that the Applicant deposits a sum of Kenya Shillings four hundred thousand (Kshs 400,000/=) only in Court within the next twenty one (21) days and files and serves the Record of Appeal within the next thirty (60) days since proceedings are already typed, in default of any one of the two conditions or both, the stay of execution granted herein shall lapse automatically.
p. 5Conditions and default clause on the stay
Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.
p. 5Definition of substantial loss under Order 42 Rule 6
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. 4Guiding principle on discretionary stay (Butt v Rent Restrictions Tribunal)

Issues in the judgment

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minor

The condition on filing the Record of Appeal is internally contradictory: 'thirty (60) days' - conflicting number in words and figures

minor

The court records that the Respondents 'opposed the Appeal' when they in fact opposed a Notice of Motion for stay of execution

minor

The 1st Applicant's affidavit describes the parties' earlier roles in a way that reverses labels within the same passage - the Respondent is said to have filed the suit the Applicants 'successfully defended', yet the decree described later records the Respondent's appeal succeeding

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Osaga & 4 others v Marwanga (Environment and Land Appeal 8 of 2023) [2025] KEELC 5605 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5605/eng@2025-07-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.