Marwa v Mahegere & 5 others (Environment and Land Case 380 of 2017) [2026] KEELC 4370 (KLR)
The bottom line
#A Kisumu court paused an eviction pending appeal, but only because the landowners deposited KShs. 400,000 within 30 days.
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 applicants' application has met the threshold for grant of stay of execution pending appeal
- 2.Who should bear the costs of the application
Key legal issues
#Whether the applicants demonstrated substantial loss
Yes - eviction pending appeal would destroy their homes and livelihoods, satisfying the first limb of Order 42 Rule 6(2)(a).
The court weighed the applicants' claim that they reside on and derive their livelihood from the suit land against the respondent's contention that no evidence of occupation, development or risk of waste was shown. Concluding that destruction of homes could not be undone if the appeal succeeded, the court found the substantial-loss limb satisfied.
Whether the application was filed without unreasonable delay
Yes - the applicants filed a notice of appeal a day after obtaining leave and brought the application immediately thereafter.
Although the judgment was delivered in 2022 and the dismissal of the set-aside application on 1st August 2025, the applicants explained they were unaware of the ruling until served with a taxation notice. Upon being granted leave to appeal out of time on 2nd February 2026, they filed the notice of appeal the next day and this application soon after.
Whether the applicants offered security for due performance of the decree
Yes - the applicants expressed willingness to abide by security terms; the court imposed a deposit of KShs. 400,000 within 30 days.
Balancing the applicants' willingness to provide security against the principle that a successful litigant should not be unreasonably denied the fruits of litigation, the court conditioned the stay on a monetary deposit, with liberty to execute upon default.
Whether the application was filed in a court with jurisdiction
Yes - under Order 42 Rule 6(1) and Order 22 Rule 22(1) such an application may properly be filed before the court appealed from.
The respondent argued the application should have gone to the Court of Appeal. The court held that the rules require filing before the court appealed from or the executing court, so the ELC had jurisdiction.
Legal principles established
#- An application for stay of execution pending appeal under Order 42 Rule 6(1) should be filed in the court from which the appeal is preferred or before which the decree has been sent for execution.
- Substantial loss for purposes of stay may be established where eviction would destroy the applicant's home and livelihood, which may not be restorable should the appeal succeed.
Court orders
#- 1.Stay of execution of the judgment delivered on 19th October 2022 and consequential orders including eviction orders pending the hearing and determination of the appeal, on condition that the applicants deposit in court KShs. 400,000 within thirty (30) days, failing which the respondent will be at liberty to execute
- 2.The applicants to bear the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 42 Rule 6 and Order 22 Rule 22 of the Civil Procedure Rules, 2010; Sections 1A, 1B and 3A of the Civil Procedure Act
Relief refused
#Costs of the application in favour of the applicants
The court found that the applicants delayed in taking steps after judgment was entered
Costs
The applicants to bear the costs of the application.
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 applicants are hereby ordered to deposit in court a sum of KShs four hundred thousand (Kshs. 400, 000/=) only within thirty (30) days, failing which, the respondent will be at liberty to execute against the said applicants.
On the issue of costs, the applicants will bear the costs for the reason that from the time the judgment was entered there has been a delay regarding the steps taken before.
the court is convinced that the applicants will suffer substantial loss if evicted from their present place of occupation and their appeal ultimately succeeds.
the instant application was filed in the correct court or the court with jurisdiction.
Issues in the judgment
#Discrepant dates for the taxation notice served on the applicants - the applicants state 29th October 2025 in one passage and 6th November 2025 in another, while the respondent refers to 27th November 2025.
Date inconsistency in the relief sought - the notice of motion refers to the 'Judgment delivered on 19th October 202' (missing a digit) in one limb.
The respondent's third authority is cited only as 'Civil Case No. 6726 of 1991 (sic)' without a case name.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Marwa v Mahegere & 5 others (Environment and Land Case 380 of 2017) [2026] KEELC 4370 (KLR)", Case Analysis (2026). ELCC 380 PF 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4370/eng@2026-07-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.