Ohira v Luchemo (Environment and Land Miscellaneous Case E017 of 2024) [2025] KEELC 7576 (KLR)
The bottom line
#Siaya's Environment and Land Court gave a losing landowner more time to appeal and stopped his eviction, provided he deposits Kshs. 45,000 as security.
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 has met the threshold for grant of the orders sought (enlargement of time to file appeal out of time and stay of execution)
Key legal issues
#Whether the delay of about four months in filing the appeal was adequately explained
The delay was not inordinate; although no medical evidence was tendered for the claimed illness, the court gave the applicant the benefit of doubt and considered the effort made in obtaining proceedings
Judgment was delivered on 19/06/2024 and the application filed about four months later, beyond the 30-day statutory period under Section 79G. The applicant pleaded illness but produced no medical report, which the court noted. Nonetheless, the court exercised discretion in the applicant's favour, relying on the principle that disputes should be decided on their merits and noting efforts to obtain proceedings and documentation for the appeal.
Whether the applicant demonstrated substantial loss justifying stay of execution
Substantial loss was demonstrated: the decree ordered eviction from the suit property which has been the applicant's family home, and eviction would cause uncompensatable loss and render the appeal nugatory
The trial judgment ordered mandatory injunction and eviction within 60 days. Since the applicant's parents established a home on the suit property, eviction would cause loss not compensable by costs and render the appeal nugatory, satisfying the substantial-loss threshold under Order 42 Rule 6(2)(a).
Whether the security condition under Order 42 Rule 6(2)(b) was satisfied
The applicant's offer of security was acceptable; the court ordered a deposit of Kshs. 45,000 in a joint interest-earning account or a bank guarantee for the same amount
Security exists to guarantee due performance of the decree. Citing Nduhiu Gitahi v Warugongo, the court held that the form of security is immaterial so long as it is adequate. The applicant had undertaken to deposit a sum in a joint interest-earning account, which the court adopted with conditions.
Legal principles established
#- Factors for extension of time include the explanation for the delay, the merits of the contemplated action and prejudice to the respondent; an arguable appeal need not necessarily succeed
- Security for the due performance of the decree may take many forms so long as it adequately protects the opposite party
Court orders
#- 1.Leave granted to the applicant to file the intended appeal out of time (prayers 2, 3 and 4 allowed)
- 2.Stay of execution of the judgment/decree of 19/06/2024 in Siaya CM ELC Case No. E024 of 2020 pending the hearing and determination of the intended appeal
- 3.The applicant to deposit Kshs. 45,000 in a joint interest-earning account by the firms of advocates on record or, in the alternative, issue a bank guarantee from a reputable bank of the same amount within 30 days of the order
- 4.The appeal to be filed within 14 days of the ruling
- 5.No orders as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Siaya Chief Magistrate's Court (Environment and Land Court)
- E024 of 2020
- Jurisdiction invoked
- Section 79G of the Civil Procedure Act; Order 42 Rule 6 of the Civil Procedure Rules, 2010
Relief refused
#Costs of the application
The court declined to award costs, making no orders as to costs
Costs
There shall be no orders as to costs.
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.
The upshot of the foregoing is that the application is allowed in terms of prayers 2,3, and 4.
The applicant shall also deposit Kshs. 45,000 in a joint interest earning account by the firms of Advocates on record or in the alternative issue a bank guarantee from a reputable bank of the same amount within 30 days of this order.
There shall be no orders as to costs.
The appeal shall be filed within 14 days of this ruling
Extension of time is not a right of a party. It is an equitable remedy that is only available to a deserving party at the discretion of the court;
Issues in the judgment
#The judgment inconsistently dates the filing of the application, stating it was filed on 30/09/2024 in the motion but later as 10/10/2025 in the analysis
The judgment is dated 4 October 2025 but the file is endorsed 04/11/2025
The judgment variously refers to the applicant as 'he', 'his' and 'she/her'
The judgment is described as a judgment in the opening but is a ruling delivered on an application
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ohira v Luchemo (Environment and Land Miscellaneous Case E017 of 2024) [2025] KEELC 7576 (KLR)", Case Analysis (2025). Siaya Chief Magistrate Environment and Land Court Case No. E024 of 2020 (appeal therefrom). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7576/eng@2025-11-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.