Onyango v Achola (Environment and Land Case 433 of 2017) [2026] KEELC 1831 (KLR)
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
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant's application for leave to appeal out of time is merited
- 2.Whether the applicant should be granted stay of execution pending appeal
- 3.Who should bear the costs of the application
Key legal issues
#Leave to appeal out of time
Allowed - seven days from striking out of the appeal to the application was not inordinate delay
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.
Stay of execution pending appeal
Granted on condition that the Kshs. 197,350/= deposited as security be retained as security for costs
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.
Whether the stay application was res judicata
Not res judicata - the new application is in respect of a different appeal
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.
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.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.Stay of execution of the decree granted pending appeal
- 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.Costs of the application to be in the cause
The bench
#One judgment of the whole court — no separate or dissenting opinions.
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.
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.
The applicant’s prayer for extension of time to appeal out time is therefore merited and is allowed.
The applicant herein has come before this court in a new capacity: a fresh appellant.
Issues in the judgment
#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
The case number of the suit is not stated anywhere in the judgment
The notice of appeal date is inconsistently stated as 1st December 2022 and 1st November 2022 in different passages
The judgment text has OCR-type corruption, e.g. 'sufier' for 'suffer', 'afidavit' for 'affidavit', 'dictionary' for 'discretionary'
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.