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Ogodo v Okoth & 3 others (Environment and Land Appeal E001 of 2025) [2025] KEELC 8405 (KLR)

High Court of Kenya
2 December 2025
2,204 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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The High Court in Siaya halted an eviction pending appeal because evicting the occupant would make her homeless and undo the appeal's purpose.

What this practically means

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Executive summary

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This is a ruling of the High Court (A. E. Dena, J) on a notice of motion dated 11/3/2025 by Alice Jorim Ogodo, the applicant, seeking stay of execution and stay of proceedings of the judgment and decree of the Bondo Magistrate's Court delivered on 17th December 2024 in Bondo ELC Case No. E046 of 2023, which ordered her eviction from land parcel East Yimbo/Nyamonye/1260 within 90 days in an adverse possession claim. The application was brought under sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules, pending a memorandum of appeal already filed. The respondent, Moses Otono Okoth, opposed, arguing the applicant sought to delay enjoyment of the judgment, had not demonstrated an arguable appeal or substantial loss, and that any stay should be conditional on security. The court framed a single issue: whether the applicant met the threshold for the orders sought. It distilled the principles from Order 42 Rule 6 - substantial loss, no unreasonable delay, and security - citing Antoine Ndiaye, James Wangalwa, RWW v EKW and Kenya Shell v Karuga. Holding that substantial loss is the cornerstone of stay jurisdiction, the court found eviction would render the applicant, who had lived on the land since 1978, homeless and render the appeal nugatory, a loss not compensable by costs. Although the delay in filing the application was unexplained and no security was offered, the court granted stay of execution without security (the decree not being monetary) but declined stay of proceedings, and awarded costs of the application to the respondent.

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 (stay of execution and stay of proceedings pending appeal)

Key legal issues

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01

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

Holding

Eviction would render the applicant homeless and the appeal nugatory; this loss is not compensable by costs, so stay was granted despite unexplained delay and absence of security

Reasoning

The trial court had confirmed the applicant's occupation of the suit land and ordered eviction within 90 days. The court held that eviction proceeding would render the applicant homeless and render the appeal nugatory if successful. It relied on RWW v EKW on preserving the subject matter, and on Kenya Shell v Karuga that substantial loss is the cornerstone of stay jurisdiction. The respondents' prejudice (delayed enjoyment of judgment) was compensable by costs.

p. 4
02

Whether security was required as a condition of stay

Holding

No security imposed because the decree is not monetary and conditions as to security are discretionary

Reasoning

The applicant offered no security, but the court noted that under Order 42 Rule 6 the conditions as to security are set by the court to which the application is made, that security should not disadvantage the applicant, and that the decree here was not monetary. It therefore declined to impose any security terms.

p. 5

Legal principles established

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  • Substantial loss is the cornerstone of the jurisdiction to grant a stay of execution pending appeal.

Court orders

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  1. 1.That there be stay of execution of Judgment and Decree issued on the 17th December, 2024 in Bondo ELC Case No. E046 of 2023 and all consequential orders thereto pending the hearing and determination of this appeal
  2. 2.That costs of the application be granted to the respondent

The bench

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

majority

Wrote the judgment

On appeal from
Bondo Magistrate's Court (ELC)
ELC Case No. E046 of 2023
Jurisdiction invoked
Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules

Relief refused

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Stay of proceedings pending appeal

The court held this is basically an application for stay of execution and not stay of proceedings; the two must not be confused

p. 3

Stay without unreasonable delay threshold satisfied

The court found the delay in bringing the application was not satisfactorily explained, though substantial loss alone justified the stay granted

p. 5

Security for due performance of the decree

The decree is not monetary and the court declined to impose terms as to security

p. 5

Costs

Costs of the application granted to the respondent.

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.

That there be stay execution of Judgment and Decree issued on the 17th December, 2024 in Bondo ELC Case No. E046 of 2023 and all consequential orders thereto pending the hearing and determination of this appeal.
p. 5Final orders - stay of execution granted
Moreover, if the eviction proceeds the appeal shall be rendered nugatory were the judgement of the trial court to be overturned and it would defeat the very essence of stay of execution.
p. 4Substantial loss and nugatory appeal
The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the Appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory.
p. 4Purpose of stay of execution (quoting RWW v EKW)
substantial loss in its various forms is the cornerstone of jurisdiction to granting a stay.
p. 5Substantial loss as cornerstone (Kenya Shell v Karuga)

Issues in the judgment

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minor

The judgment refers to security conditions under 'Order 46 Rule 6' whereas the application and the quoted provision are under Order 42 Rule 6; the reference to Order 46 appears to be a typographical error.

minor

The heading of the matter and case number of the appeal before the High Court are not stated in the judgment; the applicant is variously referred to as applicant and appellant.

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, "Ogodo v Okoth & 3 others (Environment and Land Appeal E001 of 2025) [2025] KEELC 8405 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8405/eng@2025-12-02

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