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ELCPartially AllowedNot stated in the ruling

Achayo v Oyugi & 3 others (Environment and Land Civil Appeal E033 of 2024) [2026] KEELC 1379 (KLR)

Environment and Land Court of Kenya (implied by the nature of the dispute and reference to Justice A. E. Dena's judgment)
9 March 2026
2,275 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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A Siaya land court paused eviction, letting a family stay on land they've occupied for 20 years while their appeal is heard.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Siaya (A. E. Dena, J) determines a Notice of Motion dated 30th October 2025 in which the 1st and 2nd Respondents/Applicants sought a stay of execution of the court's own judgment delivered on 2nd October 2025 pending their intended appeal to the Court of Appeal. The judgment under appeal had overturned a trial court decision dismissing the Appellant's claim, and the applicants, who have occupied North Gem/Malanga/700 for over 20 years, built permanent structures since 2004 and buried the 2nd applicant's husband there, faced eviction. The respondent opposed, arguing the court was functus officio after delivering judgment, that no execution had commenced, that no 90-day notice to vacate had issued, and offered stay conditional on a security deposit of Kshs. 500,000/-. Framing the issues as whether the application was merited and who should bear costs, the court applied Order 42 Rule 6(2). Relying on James Wangalwa v Cheseto, it found substantial loss demonstrated because eviction and demolition would render the appeal nugatory and cause irreparable psychological harm; it found no undue delay, the application having been filed within the 30-day stay window; and on security, applying the balancing exercise from Keary Development v Tarmac Construction, fixed a deposit of Kshs. 100,000/- in cash or bank guarantee within 45 days. The court allowed the application, granted the stay pending appeal, and ordered each party to bear their own 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 application for stay of execution pending appeal is merited
  2. 2.Who bears the costs of the application

Key legal issues

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01

Substantial loss

Holding

The applicants demonstrated substantial loss: eviction, demolition of permanent structures and disturbance of the family home would render the appeal nugatory and cause irreparable, unquantifiable harm.

Reasoning

The applicants had occupied the suit property North Gem/Malanga/700 for over 20 years, built permanent residential structures since 2004 and buried the 2nd applicant's husband there. The respondent did not deny the structures. The court held that vacating and possible demolition would render the appeal nugatory and cause psychological trauma not quantifiable or compensable by the respondent.

p. 4
02

Timeliness of the application

Holding

The application filed on 30th October 2025, within the 30-day stay window running from the 2nd October 2025 judgment, was made without undue delay.

Reasoning

The court compared the delivery date of the judgment with the filing date and noted the application was lodged within a month, while the 30-day stay reprieve it had earlier granted was still running. It therefore found the requirement of no unreasonable delay satisfied.

p. 4
03

Security for due performance of the decree

Holding

The court fixed security at Kshs. 100,000/-, payable in cash or by bank guarantee within 45 days.

Reasoning

Relying on the rationale that security under Order 42 guarantees due performance of any decree ultimately binding on the applicant, and on the balancing exercise from Keary Development v Tarmac Construction as applied in Ocean View Beach Hotel Ltd, the court weighed the injustice to both sides and fixed a deposit of Kshs. 100,000/-.

p. 5

Legal principles established

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  • An applicant for stay under Order 42 Rule 6(2) must demonstrate substantial loss, file the application without unreasonable delay, and furnish security for due performance of the decree.
  • Execution being put in motion by itself does not amount to substantial loss; the applicant must show the execution will render the appeal nugatory.

Court orders

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  1. 1.Stay of execution of the judgment delivered on 2nd October 2025 pending the hearing and determination of the intended appeal to the Court of Appeal
  2. 2.Security deposit of Kshs. 100,000/- by way of cash deposit or alternatively a bank guarantee of an equivalent amount, to be deposited within 45 days of the ruling
  3. 3.Each party to bear their own costs

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Order 42 Rule 6(2) of the Civil Procedure Rules (stay of execution pending appeal to the Court of Appeal)

Relief refused

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Costs of the application in favour of the applicants

The court exercised its discretion to direct that each party bear their own costs

p. 5

Costs

Each party shall bear their own 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.

In conclusion I find and hold that the Applicant has fulfilled the requirements for grant of stay of execution pending appeal as stipulated under Order 42 Rule 6 of the Civil Procedure Rules. Accordingly, I hereby allow the application dated 30th October 2025.
p. 5Final orders – stay granted
The Security shall be deposited within 45 days of this ruling either in cash with the court and or by way of bank guarantee within 45 days.
p. 5Security terms
Each party shall bear their own costs.
p. 5Costs order
Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.
p. 4Definition of substantial loss

Issues in the judgment

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minor

The heading, case number and party designations are omitted from the ruling; the parties' roles appear inconsistently, with the applicants described as '1st and 2nd Respondents/Applicants' in a first-instance stay application.

minor

The judgment uses 'Appellant' to describe both the party before the court and the party who won on 2nd October 2025, and elsewhere 'the appellants vacate the land' when referring to the applicants, creating ambiguity about who is appellish.

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, "Achayo v Oyugi & 3 others (Environment and Land Civil Appeal E033 of 2024) [2026] KEELC 1379 (KLR)", Case Analysis (2026). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1379/eng@2026-03-09

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