Odhiambo v Sarman Group Company Limited (Environment and Land Appeal E028 of 2023) [2025] KEELC 323 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the application was brought without unreasonable delay
The delay was not inordinate; the Case Tracking System showed the application was filed on 20th June 2023, barely two months after judgment.
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.
Whether the Applicant demonstrated substantial loss
The Applicant demonstrated substantial loss: eviction of his family from land on which he had long established a matrimonial home.
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.
Whether the Applicant had furnished security
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.
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.
Legal principles established
#- 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
#- 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.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.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.Costs of the application to abide the outcome of the appeal
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.