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ELCPartially AllowedSiaya Chief Magistrate Environment and Land Court Case No. E024 of 2020 (appeal therefrom)

Ohira v Luchemo (Environment and Land Miscellaneous Case E017 of 2024) [2025] KEELC 7576 (KLR)

Environment and Land Court
4 October 2025
3,447 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling by the Environment and Land Court at Siaya (A.E. Dena, J) determines a Notice of Motion dated 30/09/2024 by the applicant, who lost in Siaya Chief Magistrate ELC Case No. E024 of 2020 (judgment delivered 19/06/2024 by Hon. L. Simiyu). The applicant sought enlargement of time to appeal out of time, stay of execution of the decree pending hearing and determination of the application and of the intended appeal, and costs. The application was opposed through grounds of opposition and written submissions, the respondent arguing the delay was unexplained, no medical proof of illness was tendered, the appeal was a general afterthought aimed at avoiding taxed costs of Kshs. 96,660/-, and no security had been given. The court applied Section 79G of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules, and the principles in Salat v IEBC and Edith Gichungu Koine. It found the roughly four-month delay not inordinate, gave the applicant the benefit of doubt on the unsupported illness claim, found no prejudice to the respondent not compensable by costs, and held that an arguable appeal need not necessarily succeed. On stay, it found substantial loss since the decree ordered eviction from the property that had been the applicant's family home, which would render the appeal nugatory. The application was allowed in terms of prayers 2, 3 and 4. The applicant was to deposit Kshs. 45,000 in a joint interest-earning account or provide a bank guarantee within 30 days, and to file the appeal within 14 days. There were no orders as to costs.

Questions the Court framed

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

  1. 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

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01

Whether the delay of about four months in filing the appeal was adequately explained

Holding

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

Reasoning

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.

p. 5
02

Whether the applicant demonstrated substantial loss justifying stay of execution

Holding

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

Reasoning

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).

p. 6
03

Whether the security condition under Order 42 Rule 6(2)(b) was satisfied

Holding

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

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.Leave granted to the applicant to file the intended appeal out of time (prayers 2, 3 and 4 allowed)
  2. 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. 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. 4.The appeal to be filed within 14 days of the ruling
  5. 5.No orders as to costs

The bench

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

majority

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

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Costs of the application

The court declined to award costs, making no orders as to costs

p. 7

Costs

There shall be no orders as to costs.

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.

The upshot of the foregoing is that the application is allowed in terms of prayers 2,3, and 4.
p. 6Disposition - application allowed
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.
p. 7Security conditions
There shall be no orders as to costs.
p. 7Costs
The appeal shall be filed within 14 days of this ruling
p. 7Timeline for filing appeal
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;
p. 4Principles on extension of time (quoting Salat)

Issues in the judgment

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minor

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

minor

The judgment is dated 4 October 2025 but the file is endorsed 04/11/2025

minor

The judgment variously refers to the applicant as 'he', 'his' and 'she/her'

minor

The judgment is described as a judgment in the opening but is a ruling delivered on an application

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, "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.