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ELCPartially AllowedNot stated in judgment

Angira & another v Ombajo (Environment and Land Appeal E037 of 2025) [2025] KEELC 7067 (KLR)

High Court of Kenya
16 October 2025
2,125 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~9 min to read original · ~4 min brief

The bottom line

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Kenya's High Court stopped a family's eviction pending appeal, ruling that losing 40-year-old family land can't be undone with money.

What this practically means

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Executive summary

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By a Notice of Motion dated 2nd September 2025, Pilista Awino Angira, the applicant/appellant, sought an order of stay of execution pending the hearing and determination of her appeal against a judgment delivered on 1/08/2025, in which the trial court allowed the respondent's plaint as prayed, including an order for vacant possession of suit land where the applicant has lived for over 40 years, built houses and buried her husband. The respondent opposed, contending there was no appeal filed within time under section 79G of the Civil Procedure Act, that the applicant had exhausted the 30-day stay granted by the trial court, that she would not be homeless as she owned other land, and urging security of Kshs. 5 million for loss of use and mesne profits. The court first found the Memorandum of Appeal filed on 4/08/2025 was within the 30-day period prescribed by section 79G, since judgment was delivered on 1/08/2025. Applying Order 42 Rule 6 and the principles in Stanley Kangethe Kinyanjui v Tony Ketter, the court held the applicant had an arguable appeal that need not necessarily succeed; that eviction would cause substantial, irreparable loss not compensable in money, rendering the appeal nugatory; that there was no inordinate delay; and that the lapse of the trial court's stay did not bar the application since Order 42 permits application at either court. The demand for Kshs. 5 million security was held misplaced, security being for due performance of the decree, to be given in the manner least disadvantageous to the giver. The court granted stay of execution of the decree pending the hearing and determination of the appeal, with costs to abide the outcome of the appeal.

Questions the Court framed

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

  1. 1.Whether the Appellant has met the prerequisite for grant of orders of stay of execution pending appeal
  2. 2.Whether the appeal was filed out of time under section 79G of the Civil Procedure Act
  3. 3.Whether substantial loss may result to the applicant unless stay is granted
  4. 4.Whether the application was made without unreasonable delay
  5. 5.What security, if any, should be given for the due performance of the decree

Key legal issues

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01

Timeliness of the appeal under section 79G

Holding

The appeal filed on 4/08/2025 was within the 30 days prescribed since judgment was delivered on 1/08/2025

Reasoning

Section 79G of the Civil Procedure Act requires an appeal from a subordinate court to the High Court to be filed within 30 days, with power to extend time. Judgment was delivered on 1/08/2025 and the Memorandum of Appeal filed on 4/08/2025, so the appeal was within time and the out-of-time objection failed.

p. 3
02

Substantial loss

Holding

Eviction from the property occupied for over 40 years, with burial sites, would cause irreparable loss not compensable by money

Reasoning

The decree includes an order for vacant possession. The applicant has lived on the suit land for over 40 years, built houses and has burial sites there. If the property is dealt with adversely, the substratum of the appeal would be lost and the appeal rendered nugatory; granting stay represents the lower risk of injustice.

p. 4
03

Arguable appeal

Holding

The applicant has an arguable appeal, which need not necessarily succeed

Reasoning

Guided by the Court of Appeal in Stanley Kangethe Kinyanjui v Tony Ketter and Kenya Commercial Bank v Nicholas Ombija, it is sufficient if a single bona fide ground of appeal is raised. Having seen the Memorandum of Appeal, the court was satisfied the appeal is arguable, while refraining from delving into the merits.

p. 4
04

Delay in filing the application

Holding

No inordinate delay; the application filed on 2nd September 2025 after judgment on 01/08/2025 was timely, and Order 42 permits the application either at the trial court or the appellate court

Reasoning

Judgment was delivered on 01/08/2025 and the application filed on 2nd September 2025. The lapse of the 30-day stay granted by the trial court does not bar the application, since Order 42 gives a party two alternatives: to apply at the trial court or at the court where the appeal is lodged.

p. 4
05

Security for due performance of the decree

Holding

Security is at the court's discretion and should be given in the manner least disadvantageous to the party giving it; the respondent's demand for Kshs. 5 million as compensation was misplaced

Reasoning

The applicant made no concrete proposal on security, but the court adopted the Nduhiu Gitahi v Warugongo principle that security should protect the opposite party adequately while being least disadvantageous to the giver. Security under Order 42 is for due performance of the decree, not compensation for loss of use and mesne profits.

p. 4

Legal principles established

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  • Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory
  • An arguable appeal need not be one that must necessarily succeed; it suffices that it is not frivolous and ought to be argued fully

Court orders

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  1. 1.Stay of execution of the decree herein granted pending the hearing and determination of this appeal
  2. 2.Costs shall abide the outcome of the appeal

The bench

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

majority

Wrote the judgment

On appeal from
Subordinate court (not named in judgment)
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules; Section 79G of the Civil Procedure Act

Relief refused

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Security for costs of Kshs. 5,000,000/- proposed by the respondent

The court held that compensation for loss of use and mesne profits is not the purpose of security under Order 42

p. 4

Costs

Costs shall abide the outcome of the 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.

Considering all relevant factors, and in order not to render the intended appeal illusory, I do grant stay of execution of the decree herein pending the hearing and determination of this appeal.
p. 4Final orders - stay of execution granted
Costs shall abide the outcome of the appeal.
p. 4Costs order
Substantial loss is what has to be prevented by preserving the status quo because such loss would render the Appeal nugatory.
p. 3Definition of substantial loss
an arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court
p. 4Arguable appeal standard
from the provisions of order 42 hereinabove a party has two alternatives. To make the application at the trial court or at the court where the appeal has been lodged.
p. 4Forum for stay application under Order 42
I think a party has a right to appeal a decision they are not happy with provided that they have an arguable appeal.
p. 4Right of appeal

Issues in the judgment

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minor

The respondent is not named anywhere in the judgment; the parties are referred to only as 'the applicant' and 'the Respondent'

minor

The case number of the appeal is not stated in the judgment

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, "Angira & another v Ombajo (Environment and Land Appeal E037 of 2025) [2025] KEELC 7067 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7067/eng@2025-10-16

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