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ELCAllowedNot stated on the face of the ruling (appeal from Homa Bay CMCC Land Suit No. 45 of 2022)· [2025] KEELC 323 (KLR)

Odhiambo v Sarman Group Company Limited (Environment and Land Appeal E028 of 2023) [2025] KEELC 323 (KLR)

High Court of Kenya
23 January 2025
3,549 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~14 min to read original · ~4 min brief

The bottom line

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Kenya's High Court stopped an eviction on appeal, but only after the appellant deposits Kshs 400,000 in court within 21 days.

What this practically means

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Executive summary

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The Appellant, judgment debtor in Homa Bay Chief Magistrate's Court Land Suit No. 45 of 2022, moved the High Court by Notice of Motion dated 12th June 2023 under Order 42 Rule 6(1) and 6(4) of the Civil Procedure Rules seeking stay of execution of the decree of Honourable J. M. Nangea, Chief Magistrate, delivered on 26th April 2023, which ordered him to vacate land parcel Kasunga/Kamreri/4021 within 45 days. He argued the appeal was arguable, that he would suffer irreparable loss since the land housed his matrimonial home and family who claimed an overriding interest under Section 28(a) of the Land Registration Act, and that the appeal would be rendered nugatory. The Respondent opposed through Grounds of Opposition, contending the application failed the Order 42 Rule 6(2) threshold, that substantial loss was speculative, and that there was inordinate delay. Written submissions were filed by both sides. The Court considered the settled conditions for stay: no unreasonable delay, substantial loss, and security. Relying on the Case Tracking System, it found the application was filed on 20th June 2023, only two months after judgment, so delay was not inordinate. It found the Applicant had demonstrated substantial loss through the threatened eviction of his family from their long-established matrimonial home. While agreeing that a bare averment of willingness to offer security was insufficient, the Court exercised discretion in the Applicant's favour given his sustained offer. The Court granted a conditional stay of execution, conditioned on depositing Kshs 400,000 in court within 21 days and filing the certified decree within 14 days for consideration under Section 79B of the Civil Procedure Act, failing which the appeal would be listed on 6th March 2025 for show cause why it should not be dismissed for want of prosecution. Costs of the application were to abide the outcome of the appeal.

Key legal issues

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01

Whether the application was brought without unreasonable delay

Holding

The delay was not inordinate; the Case Tracking System showed the application was filed on 20th June 2023, barely two months after judgment.

Reasoning

The Respondent contended the application was filed on 2nd October 2024, over a year after the decree. The Court checked the Case Tracking System and found the application was actually filed on 20th June 2023, less than two months after the judgment of 26th April 2023 and within a month of filing the Memorandum of Appeal. Accordingly, the limb of reasonable delay was satisfied.

p. 5
02

Whether the Applicant demonstrated substantial loss

Holding

The Applicant demonstrated substantial loss: eviction of his family from land on which he had long established a matrimonial home.

Reasoning

The Applicant deposed that judgment required him to vacate land parcel Kasunga/Kamreri/4021 within 45 days, that he had been in long occupation and had built a matrimonial home for his wife and children who claimed an overriding interest under Section 28(a) of the Land Registration Act. The Court found the loss (eviction of the family) was established; the absence of photographic evidence of developments did not defeat the limb.

p. 6
03

Whether the Applicant had furnished security

Holding

The Applicant's bare averment of willingness to offer security was inadequate, but given his sustained willingness for over a year and seven months, the Court granted a conditional stay requiring a deposit of Kshs 400,000 within 21 days.

Reasoning

The Court agreed with the Respondent that merely stating willingness to offer security is not enough; security must be specifically demonstrated and meaningful relative to the decree. However, since the Applicant had expressed willingness to furnish security from the outset, the Court exercised its discretion to give him the chance to do so, fixing the deposit sum and a strict compliance timeline.

p. 6

Legal principles established

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  • Stay of execution pending appeal exists to preserve the subject matter so that a successful appeal is not rendered nugatory, but must be balanced against the successful litigant's right to the fruits of judgment.
  • The three conditions in Order 42 Rule 6(2) — substantial loss, no unreasonable delay and furnishing security — must be satisfied as a package.
  • A mere averment of willingness to offer security is insufficient; the applicant should demonstrate specifically how security will be provided and it must be meaningful in comparison to the decree being stayed.

Court orders

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  1. 1.Stay of execution of the decree issued in Homa Bay Chief Magistrate's Court Land Case No. 45 of 2022 granted on condition that the Applicant deposits Kshs 400,000 in court within twenty-one (21) days, in default of which the condition lapses automatically
  2. 2.The Applicant to file the certified copy of the decree appealed from within fourteen (14) days in terms of Order 42 Rule 2 of the Civil Procedure Rules and place the appeal before the Judge for consideration under Section 79B of the Civil Procedure Act
  3. 3.In default, the appeal to be mentioned on 6th March 2025 for a Notice to Show Cause why it should not be dismissed for want of prosecution
  4. 4.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(1) and Rule 6(4)
  • Civil Procedure Rules, 2010Order 42 Rule 6(2)
  • Civil Procedure Rules, 2010Order 51 Rule 14(2)
  • Civil Procedure Rules, 2010Order 42 Rule 2
  • Civil Procedure Rules, 2010Order XLI rule 4(2)(b)
  • Civil Procedure ActSection 79B
  • Land Registration ActSection 28(a)

Cases cited (15)

  • Paul Kamura Kirunge v. John Peter Nganga
    [2019] eKLR
  • James Wangalwa & another v. Agnes Naliaka Chesto
    [2012] eKLR
  • Machira T/A Machira and Company Advocates v. East African Standard
    [2002] eKLR
  • Ndegwa Gichine v. Sicily Warware Njira
    [2018] eKLR
  • Focin Motor Cycle Co. Ltd v. Anne Wambui & another
    [2018] eKLR
  • DR. G.N. Muema P/a Mt View Maternity And Nursing Home v. Miriam Maalim Bishar & Anor
    Voi HCCA No. 20 of 2016
  • Consolidated Marine v Nampijja & Another
    Civil App. No. 93 of 1989 (Nairobi)
  • RWW -Vs- EKW
    [2019] eKLR
  • Butt v Rent Restriction Tribunal
    [1982] KLR 417
  • Masisi Mwita -vs- Damaris Wanjiku Njeri
    (2016) eKLR, Civil Appeal No. 107 of 2015
  • Halal & Another -vs- Thornton & Turpin [1963] Ltd
    [1990] eKLR
  • Hassan Guyo Wakalo -vs- Straman EA Ltd
    (2013)
  • Salim v Co-operative Bank of Kenya Limited & 2 others
    (Environment & Land Case 193 of 2021) [2024] KEELRC 2291 (KLR) (23 September 2024) (Ruling)
  • The Registered Trustees of the Archdiocese of Dar es Salaam vs The Chairman Bunju Village Government & Others
  • Parimal v. Veena
    (2011) 3 SCC 545
On appeal from
Magistrates Court at Homa Bay (Chief Magistrate's Court)
Land Suit No. 45 of 2022
Jurisdiction invoked
Appellate supervisory jurisdiction of the High Court over subordinate court decrees, with the application brought under Order 42 Rule 6(1) as read with Rule 6(4) of the Civil Procedure Rules, 2010

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, "Odhiambo v Sarman Group Company Limited (Environment and Land Appeal E028 of 2023) [2025] KEELC 323 (KLR)", Case Analysis (2025). Not stated on the face of the ruling (appeal from Homa Bay CMCC Land Suit No. 45 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/323/eng@2025-01-23

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