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ELCPartially AllowedStay application dated 25th February 2026 (appeal to Court of Appeal being Kisumu Court of Appeal Civil Appeal No. E015 of 2025)

Omollo v Ngune (Environment and Land Appeal E006 of 2023) [2026] KEELC 3392 (KLR)

Environment and Land Court
4 June 2026
792 words in judgment
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The bottom line

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The Kisumu Environment and Land Court paused execution of a land judgment, but only because the losing party agreed to deposit Kshs. 300,000 as security within 45 days.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kisumu (E. Asati, J) determines a Notice of Motion dated 25th February 2026 brought under Order 42 Rule 6 and Order 51 of the Civil Procedure Rules and sections 1A, 1B, 3 and 3A of the Civil Procedure Act. The applicant, Maricus Otieno Ngune, sought a stay of execution of the judgment and decree of this court dated 31st October 2024 pending his appeal, Kisumu Court of Appeal Civil Appeal No. E015 of 2025. The underlying dispute concerned a claim of adverse possession: the trial court had found in the applicant's favour, but this court on appeal set aside that decree, found the applicant not entitled to the suit land and dismissed the Originating Summons. The respondent, Janet Akinyi Omollo, opposed the application through a notice of preliminary objection and a replying affidavit, arguing that the application was founded on an incompetent Notice of Appeal filed without leave, that no memorandum of appeal was attached so arguability could not be assessed, and that the application was an abuse of process intended to obstruct enjoyment of the judgment. The court did not rule expressly on the preliminary objection but held that it was in the interest of justice to stay execution to enable the applicant to ventilate his appeal. It granted a conditional stay, requiring the applicant to deposit Kshs. 300,000 in court as security within 45 days, failing which the stay lapses, 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 is entitled to a stay of execution of the judgment of this court dated 31st October 2024 pending the hearing and determination of the appeal to the Court of Appeal
  2. 2.Whether the court has jurisdiction to entertain the application given the respondent's objections that the Notice of Appeal was incompetent and no memorandum of appeal was attached
  3. 3.Whether the applicant should provide security for the due performance of the decree

Key legal issues

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01

Entitlement to stay of execution pending appeal

Holding

The application for stay was allowed subject to the applicant depositing security of Kshs. 300,000 within 45 days.

Reasoning

The court considered the application, the opposition by way of preliminary objection and replying affidavit, and held that it was in the interest of justice to stay execution so the applicant could ventilate his appeal before the Court of Appeal. The applicant had indicated willingness to provide security for the due performance of any decree as provided under Order 42 Rule 6, and the court conditioned the stay on that security being deposited within 45 days.

p. 2
02

Effect of the judgment set aside below

Holding

Since the court's judgment set aside the lower court's decree and dismissed the Originating Summons, the respondent is at liberty to assert her title against the applicant, hence the risk of eviction that motivated the stay application.

Reasoning

The underlying suit was based on adverse possession. The trial court found for the applicant, but this court on appeal found he was not entitled to the land, allowed the appeal and dismissed the Originating Summons. Setting aside the lower court judgment meant the respondent could take steps to assert her title, and auctioneers had allegedly been instructed to evict the applicant, making the stay application necessary.

p. 2

Legal principles established

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  • A court may grant a stay of its own judgment pending an appeal to the Court of Appeal where the applicant offers security for due performance of the decree, in the interest of justice

Court orders

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  1. 1.An order of stay of execution of the judgment of this court dated 31st October 2024 together with all consequential orders pending hearing and determination of the appeal to the Court of Appeal
  2. 2.Condition that the applicant deposits in court Kshs. 300,000 as security within 45 days, failing which the stay lapses
  3. 3.Costs of the application awarded to the Appellant

The bench

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

majority

Wrote the judgment

On appeal from
Lower Court (trial court)
Jurisdiction invoked
Order 42 Rule 6 and Order 51 of the Civil Procedure Rules, sections 1A, 1B, 3 and 3A of the Civil Procedure Act

Relief refused

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Unconditional stay of execution

Stay was made conditional on the applicant depositing security of Kshs. 300,000 in court within 45 days, failing which the order lapses

p. 2

Costs

Costs of the application are awarded to the Appellant.

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.

For the foregoing reasons, I allow the application in the following terms:
p. 2disposition
An order of stay of execution of the judgment of this court dated 31st October 2024 together with all consequential orders is hereby granted pending hearing and determination of the appeal to the Court of Appeal on condition that the applicant deposits in court the sum of Kshs. 300,000/= (three hundred thousand only) being security within 45 days hereof, failing which the order of stay of execution granted herein shall lapse.
p. 2final orders - conditional stay
I find it to be in the interest of justice to stay the execution of the Judgment herein to allow the applicant to ventilate his appeal before the Court of Appeal.
p. 2interest of justice
Costs of the application are awarded to the Appellant.
p. 2costs

Issues in the judgment

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minor

Role confusion: both parties are referred to as 'Appellant' - the applicant (Ngune) is described as 'the Appellant' in the grounds yet the opposition is stated to be by 'the appellant' (Omollo's side)

minor

The judgment states both that 'The applicant has a legitimate right to appeal' in the grounds and elsewhere refers to the respondent as 'the appellant is at liberty to take any steps to assert his rights/title', internally inconsistent gender/party references

minor

The judgment does not state how the court resolved the preliminary objection and the jurisdiction challenge, moving directly to the disposition

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, "Omollo v Ngune (Environment and Land Appeal E006 of 2023) [2026] KEELC 3392 (KLR)", Case Analysis (2026). Stay application dated 25th February 2026 (appeal to Court of Appeal being Kisumu Court of Appeal Civil Appeal No. E015 of 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3392/eng@2026-06-04

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