Osaga & 4 others v Marwanga (Environment and Land Appeal E008 of 2023) [2026] KEELC 3878 (KLR)
The bottom line
#Kenya's Environment and Land Court halved a Kshs. 400,000 stay-of-execution deposit to Kshs. 200,000, ruling that security terms must not block access to justice.
What this practically means
#Executive summary
#Key legal issues
#Whether the court has jurisdiction to review its own order on security for stay of execution
The court has jurisdiction under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules to review the order on security, as the Applicants are not seeking to review the judgment which is before the Court of Appeal
The court distinguished between the judgment, which is before the Court of Appeal, and the ancillary order on security for stay. Since the application targets only the security condition, invoking the ground of 'any other sufficient reason' under Order 45 rule 1(2), the review jurisdiction under Section 80 and Order 45 is properly engaged.
Whether the court became functus officio after issuing the security orders
The court is not functus officio because it has statutory jurisdiction to review its orders, and review does not reopen a case
Relying on Kabansora Millers Ltd v Nyangena and the cited Supreme Court authority, the court held that the functus officio doctrine yields to specific statutory exceptions such as review. Since the Respondent himself invoked Order 45 grounds, the court could consider the application on its merits within the review jurisdiction.
Whether the security condition of Kshs. 400,000 should be reviewed on the ground of any other sufficient reason
The deposit was reduced to Kshs. 200,000, balancing the Applicants' inability to pay against their unexplained delay in bringing the application
The court acknowledged that the Applicants delayed in seeking review and should have raised their financial position when the orders were made. However, security terms should not stifle access to justice or render an appeal nugatory. Weighing the parties' interests, the court fixed security at Kshs. 200,000, reflecting the delay, and granted stay within 45 days.
Legal principles established
#- A court that has been granted jurisdiction to review its orders does not become functus officio, because a review does not seek to reopen a case
- Terms of security for stay of execution should not be used to stifle a party's access to justice, especially where an appeal is not frivolous and is likely to be rendered nugatory
- An application for review must be made without unreasonable delay, and the Applicant must satisfactorily explain the delay however small
Court orders
#- 1.The condition to deposit Kshs. 400,000 as security for stay of execution pending appeal is varied and substituted with a deposit of Kshs. 200,000
- 2.The deposit is to be made within 45 days, failing which stay is granted only within that period
- 3.The Applicants shall bear the costs of the application
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Osaga & 4 others v Marwanga (Environment and Land Appeal E008 of 2023) [2026] KEELC 3878 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3878/eng@2026-06-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.