Osaga & 4 others v Marwanga (Environment and Land Appeal 8 of 2023) [2025] KEELC 5605 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Applicants should be granted stay of execution pending appeal
Key legal issues
#Whether the Applicants demonstrated substantial loss warranting stay of execution pending appeal
The court found the Applicants will suffer substantial loss if eviction proceeds, considering their long occupation of the suit land
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.
Whether the application was filed without unreasonable delay
The delay of eight days between judgment (19th February 2025) and filing (27th February 2025) was not unreasonable
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).
Whether the Applicants satisfied the security condition
An offer to abide by any security the court directs suffices; the court imposed a deposit of Kshs 400,000 within 21 days
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.
Legal principles established
#- 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
#- 1.Stay of execution of the judgment delivered on 19/2/2025 pending the hearing and determination of the intended appeal
- 2.Applicant to deposit Kenya Shillings four hundred thousand (Kshs 400,000/=) in Court within twenty one (21) days
- 3.Applicant to file and serve the Record of Appeal within the next thirty (60) days since proceedings are already typed
- 4.In default of any one of the two conditions or both, the stay of execution granted shall lapse automatically
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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
#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.
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.
Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.
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
#The condition on filing the Record of Appeal is internally contradictory: 'thirty (60) days' - conflicting number in words and figures
The court records that the Respondents 'opposed the Appeal' when they in fact opposed a Notice of Motion for stay of execution
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
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kimunge v Gachau (Land Case Appeal E077 of 2025) [2026] KEELC 2276 (KLR)[2026] KEELC 2276 (KLR)22 Apr 2026followed
Cite this brief
#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.