Ogada v Ngesa & another; National Bank of Kenya Limited & another (Interested Parties) (Environment and Land Appeal E097 of 2025) [2025] KEELC 8457 (KLR)
The bottom line
#A Kisumu court paused an eviction because the homeowner would suffer substantial loss, but only on condition he deposits Kshs 150,000 as security within 45 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 Applicant will suffer substantial loss if stay of execution is not granted
- 2.Whether the application was made without unreasonable delay
- 3.Whether the Applicant has offered security for the due performance of the decree
Key legal issues
#Substantial loss
The Applicant, whose home is on the suit land and faces eviction under the judgment, will suffer substantial loss if stay is not granted.
The judgment appealed against ordered the Applicant's eviction from the suit land and restrained him from dealing with it. Since he deposed that he has established his homestead on the land, eviction would occasion substantial loss. The court adopted the definition of substantial loss from Dr. Daniel Chebutuk Rotich v Morgan Kimaset Chebutuk as the totality of consequences the applicant would suffer.
Conditions for stay under Order 42 Rule 6(2)
The statutory conditions were met: substantial loss, no unreasonable delay, and an undertaking to provide security, justifying a conditional stay.
The court set out the three conditions in Order 42 Rule 6(2): substantial loss, application without unreasonable delay, and security for due performance of the decree. The Applicant pleaded no unreasonable delay and undertook to abide by conditions on security. The court allowed the stay conditional on a deposit of Kshs 150,000 within 45 days, failing which the stay lapses.
Unopposed application
The application was treated as unopposed because the Respondents' Replying Affidavit was not on file or the CTS platform.
Counsel for the Respondents informed the court that a Replying Affidavit dated 27th November 2025 had been filed, but no such affidavit was found on the physical court file or the CTS platform as at the date of the ruling. Absent evidence of filing, the court treated the application as unopposed and proceeded to determine it on the Applicant's material and the law.
Legal principles established
#- Substantial loss is assessed by the totality of the consequences an applicant is likely to suffer if stay is not granted
Court orders
#- 1.An order of stay of execution of the judgment dated 28th October 2025 in KISUMU CMC EL CASE NO. 13 OF 2020 granted pending determination of the appeal, on condition that the applicant deposits in court Kshs 150,000 as security within 45 days, failing which the stay lapses
- 2.Costs in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court, Kisumu (Environment and Land)
- KISUMU CMC EL CASE NO. 13 OF 2020
- Jurisdiction invoked
- Order 42 Rule 6(2) of the Civil Procedure Rules 2010 (stay of execution pending appeal)
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.
An order of stay of execution of the judgement dated 28th October 2025 in KISUMU CMC EL CASE NO. 13 OF 2020 is hereby granted pending determination of the appeal herein on condition that the applicant deposits in court the sum of Kshs 150,000
Substantial loss is a relative term and more often than not can be assessed by the totality of the consequences which an Applicant is likely to sufier if stay of execution is not granted
No order for stay of execution may be made under sub rule (1) unless the court is satisfied that substantial loss may result to the Applicant unless the order is made
If the eviction takes place, the Applicant who deposed that he has his home on the suit land will no doubt sufier substantial loss.
Issues in the judgment
#Date inconsistency: the application dated 20th November, 2025 is supported by an affidavit sworn on 20th September, 2025, an earlier date than the application itself.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ogada v Ngesa & another; National Bank of Kenya Limited & another (Interested Parties) (Environment and Land Appeal E097 of 2025) [2025] KEELC 8457 (KLR)", Case Analysis (2025). Kisumu ELC Appeal (arising from KISUMU CMC EL CASE NO. 13 OF 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8457/eng@2025-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.