Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedNot stated in the judgment

Onyango v Achola (Environment and Land Case 433 of 2017) [2026] KEELC 1831 (KLR)

High Court of Kenya at Migori
9 March 2026
4,763 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~19 min to read original · ~4 min brief

The bottom line

#

Kenya's High Court confirmed you can restart an appeal after it's struck out, if you act quickly — a seven-day delay was acceptable.

What this practically means

#

Executive summary

#
This was a ruling of the High Court at Migori (F. Nyagaka, J) on a notice of motion dated 11th April 2025 by the applicant, Maurice Okello Onyango, seeking leave to lodge a notice of appeal out of time against the court's judgment of 18th October 2022, which had dismissed his suit with costs, together with a stay of execution of the decree and an order that his earlier deposit of Kshs. 197,350/= stand as security for costs. The applicant had lodged an appeal at the Court of Appeal, but that appeal was struck out on 4th April 2025 for failure to seek leave to appeal out of time; the conditional stay of execution granted by the High Court on 19th June 2024 thereby lapsed. The respondent opposed, arguing the application was based on falsehoods, that there was inordinate and unexplained delay, that a stay could not attach to a non-existent appeal, that the decree was negative and incapable of being stayed, and that the stay prayer was res judicata given the earlier conditional stay order. The court framed three issues. Relying on Jedida Alumasa v S.S. Kositany, it held that delay runs from the date the appeal was struck out, so the seven-day interval was not inordinate, and granted leave to appeal out of time. On stay, it held the prayer was not res judicata because the applicant came before the court as a fresh appellant pursuing a new appeal; the earlier stay had lapsed with the struck-out appeal. The court granted prayers (c), (d) and (e), staying execution pending appeal on condition that the deposit of Kshs. 197,350/= be retained as security for costs, with costs of the application in the cause.

Questions the Court framed

#

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

  1. 1.Whether the applicant's application for leave to appeal out of time is merited
  2. 2.Whether the applicant should be granted stay of execution pending appeal
  3. 3.Who should bear the costs of the application

Key legal issues

#
01

Leave to appeal out of time

Holding

Allowed - seven days from striking out of the appeal to the application was not inordinate delay

Reasoning

Section 79G of the Civil Procedure Act permits admission of an appeal out of time on good and sufficient cause. Applying Jedida Alumasa, delay is measured from the date the appeal was struck out. The applicant filed the instant application seven days after the Court of Appeal struck out his appeal on 4th April 2025, which the court found bespeaks a diligent party; the prayer was therefore merited.

p. 7
02

Stay of execution pending appeal

Holding

Granted on condition that the Kshs. 197,350/= deposited as security be retained as security for costs

Reasoning

The court rejected the res judicata objection: the earlier conditional stay was attached to the appeal that was struck out and lapsed with it, and the new application concerns a completely different appeal. Refusing stay would render the fresh appeal nugatory. Order 42 rule 6 conditions were considered satisfied, with the existing deposit serving as security.

p. 9
03

Whether the stay application was res judicata

Holding

Not res judicata - the new application is in respect of a different appeal

Reasoning

Res judicata bars relitigation of the same issue between the same parties in the same capacity. The applicant, having filed a fresh appeal after the striking out, appears in a new capacity as a fresh appellant. Holding otherwise would produce the absurdity of a lapsed stay persisting indefinitely regardless of appellate outcomes.

p. 8

Legal principles established

#
  • A litigant whose appeal has been struck out may restart the appellate process provided he comes to court promptly for an extension of time
  • Delay for an extension-of-time application after a striking out is calculated from the date the appeal was struck out, not the date of the underlying judgment
  • A fresh application for stay of execution pending a new appeal is not res judicata where the earlier conditional stay lapsed with the striking out of the earlier appeal

Court orders

#
  1. 1.Leave granted to the applicant to lodge a notice of appeal out of time against the judgment delivered on 18/10/2022, time to start running from the date of the ruling
  2. 2.Stay of execution of the decree granted pending appeal
  3. 3.The security of Kshs. 197,350/= deposited in court on 31/7/2024 be retained and used as security for costs pending the determination of the appeal to be filed
  4. 4.Costs of the application to be in the cause

The bench

#

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

majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 3A, 65, 78G and 95 of the Civil Procedure Act; Order 42 Rule 6(1) and Order 51 Rule 1 of the Civil Procedure Rules 2010

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 totality of it is that prayers c, d and e of the application dated 11th April 2025 are granted. Once more, leave to appeal to start running from today.
p. 9Final orders - leave and stay granted
Thus, there is then granted a stay of execution pending appeal on condition that the security in the sum of Kshs. 197, 350/= which was deposited herein pending the determination of the previous Appeal be retained and used as security for costs pending the determination of the appeal to be filed forthwith.
p. 9Conditional stay of execution
The applicant’s prayer for extension of time to appeal out time is therefore merited and is allowed.
p. 7Extension of time
The applicant herein has come before this court in a new capacity: a fresh appellant.
p. 8Res judicata rejected

Issues in the judgment

#
minor

The security deposit figure appears inconsistently as Kshs. 197,350/= in the application and ruling, but KShs. 197,850/= in the respondent's replying affidavit

minor

The case number of the suit is not stated anywhere in the judgment

minor

The notice of appeal date is inconsistently stated as 1st December 2022 and 1st November 2022 in different passages

minor

The judgment text has OCR-type corruption, e.g. 'sufier' for 'suffer', 'afidavit' for 'affidavit', 'dictionary' for 'discretionary'

minor

The ruling is dated 9th March 2026, nearly a year after the application of 11th April 2025; no explanation given

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Onyango v Achola (Environment and Land Case 433 of 2017) [2026] KEELC 1831 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1831/eng@2026-03-09

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