Elizabeth Akwii Ongatui v Pauline Akotchi Odero
The bottom line
#The Environment and Land Court in Busia paused eviction and land transfer orders against a homeowner until her appeal is heard, because eviction would leave her family homeless.
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 Appellants have satisfied the legal threshold for the grant of an order of stay of execution of the judgment, decree, and eviction orders pending the hearing and determination of the appeal
Key legal issues
#Substantial loss
Threatened eviction and demolition of the Appellant's home constitutes substantial loss under Order 42 Rule 6(2).
The Appellant deponed she is in occupation of the suit parcel and execution would render her and her family homeless. The Respondent contested this in Grounds of Opposition but produced no material evidence to the contrary. Homelessness is a form of substantial loss not remediable by damages, satisfying the first limb of the test.
Unreasonable delay
An application filed about two weeks after judgment was made without unreasonable delay.
The impugned judgment was delivered on 16th October 2025 and the application lodged on 3rd November 2025, a period of roughly two weeks, which the Court found did not constitute unreasonable delay under the second limb of Order 42 Rule 6(2).
Security for due performance of the decree
Willingness to abide by conditions suffices; the Court retains discretion to set security.
Although the Appellant proposed no specific security, she expressed willingness in her Further Affidavit to comply with any conditions including depositing security. The purpose of security is to guarantee due performance of the decree, not to punish the judgment debtor, so security may be imposed as a condition of stay.
Legal principles established
#- The requirements under Order 42 Rule 6(2) for stay of execution are cumulative, not disjunctive.
- Being rendered homeless is substantial loss that may not be remedied by an award of damages.
- Absence of a specific proposal on security is not fatal where the applicant demonstrates readiness to abide by the Court's directions.
Court orders
#- 1.An order of stay of execution of the judgment dated 16th October 2025 and all consequential decrees/orders issued pursuant thereto pending the hearing and determination of the appeal
- 2.Costs of the application to abide by the outcome of the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court at Busia (Environment and Land)
- Busia CMC ELC NO E112 of 2020
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)
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 requirements under Order 42 Rule (6)(2) are not disjunctive but cumulative.
The Appellant and her family being rendered homeless is a form of substantial loss that may not be remedied by an award of damages should the appeal ultimately succeed.
An order of stay of execution of the judgment dated 16th October 2025 and all consequential decrees/orders issued pursuant thereto is hereby granted pending the hearing and determination of the appeal.
Costs of this application shall abide by the outcome of the appeal.
Issues in the judgment
#Case number inconsistency between caption and footers.
Sole issue refers to eviction orders not sought in the motion.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elizabeth Akwii Ongatui v Pauline Akotchi Odero", Case Analysis (2026). ELC APPEAL NO. E026 OF 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5916/eng@2026-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.