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ELCDismissedNot stated in the ruling (appeal from Kisumu CMCC; stay application ruled on 7th March 2024)· [2025] KEELC 396 (KLR)

Joseph v Orodi (Sued through the administrator of his Estate Charles Odhiambo Gundo) & 11 others (Environment and Land Appeal E020 of 2023) [2025] KEELC 396 (KLR)

Environment and Land Court

3 February 2025

SOS. Okong'o

2,979 words in judgment

View original judgment Read on Kenya Law Watch case

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The bottom line

If you ask a Kenyan court to set your appeal security terms, you cannot later seek review because the terms turn out inconvenient.

What this practically means

Executive summary

This is a ruling of the Environment and Land Court at Kisumu (S. Okong'o, J) on the Appellant's Notice of Motion dated 17th April 2024 seeking review of the security condition imposed when the court granted a conditional stay of execution of a lower court judgment of 27th April 2023. The lower court had dismissed the Appellant's trespass suit and allowed the 1st Respondent's counter-claim, ordering the Land Registrar to hive off 2.5 acres from Plot No. 706 and 3.9 acres from Plot No. 1279 and reallocate them to the 1st Respondent. On 7th March 2024 the court granted stay conditionally, requiring the Appellant to deposit Kshs. 500,000/- in a joint interest-earning account within 60 days, subject to an inhibition on the suit properties. The Appellant, describing herself as a retiree without income, sought to substitute a title deed for Kisumu/Koru/1955 valued at Kshs. 2,500,000/-, and later offered L.R No. 25720 (I.R No. 256592) as an alternative. The Respondents opposed, arguing the issues were within her knowledge when she made the stay application, that the title offered was fraudulently acquired and its mutation unregistered, and that she had income from Koru Mission Hospital and farming. The court applied Section 80 of the Civil Procedure Act and Order 45 Rule 1, adopting the principles in Republic v. Advocates Disciplinary Tribunal Ex parte Apollo Mboya, Francis Origo v. Jacob Kumali Mungala and Attorney General v. Law Society of Kenya. It held that a stay applicant must propose her preferred security at the stay stage; having offered to abide by any condition, the Appellant could not seek review because the imposed security was inconvenient. It further found the offered property unsuitable as it was the subject of the suit, and the alternative an afterthought. The application was dismissed with costs to the Respondents.

Key legal issues

Whether inability to raise the security deposit constituted sufficient reason for review under Order 45 Rule 1

Holding

No. Having offered to abide by any condition, the Appellant could not later seek review on grounds of convenience

Reasoning

The court held that a stay applicant who knows security will be ordered should propose the type of security she can give. The Appellant instead offered to abide by 'any' condition. Having left the matter to the court's discretion, she could not turn around and claim the security imposed was onerous; otherwise every security condition would become reviewable.

p. 5

Whether the proposed title deed for Kisumu/Koru/1955 and the alternative parcel were acceptable security

Holding

No. The title was disputed and subject of the underlying suit; the alternative was an afterthought

Reasoning

The court agreed with the Respondents that the parcel offered as security was the very subject of the lower court suit and thus not ideal security for due performance of the decree. The alternative parcel, L.R No. 25720 (I.R No. 256592), was raised late without explanation, making it an afterthought.

p. 6

Legal principles established

A stay applicant who leaves the choice of security to the court must abide by whatever security the court imposes; inconvenience in raising it is not sufficient reason for review
A party exercising the court's discretion through a stay application must make full disclosure and act in good faith

Court orders

1.The Appellant's Notice of Motion dated 17th April 2024 is dismissed
2.Costs of the application to the Respondents

Authorities

Legislation

Civil Procedure ActSections 1A, 1B, 63(e), 80(a), 99
Civil Procedure RulesOrder 45 Rule 1(1), Order 42 Rule 6

Cases cited (3)

Republic v. Advocates Disciplinary Tribunal Ex parte Apollo Mboya
[2019] eKLR
Francis Origo & another v. Jacob Kumali Mungala
Eldoret CA No. 149 of 2001, [2005] eKLR
Attorney General v. Law Society of Kenya & another
[2017] eKLR

On appeal from: Lower court (trial court, Kisumu); Not stated
Jurisdiction invoked: Sections 1A, 1B, 63(e), 80(a) and 99 of the Civil Procedure Act and Order 45 Rule 1(a) of the Civil Procedure Rules

Key timeline

Practical implications

Frequently asked questions

Cite this brief

Caselaw, "Joseph v Orodi (Sued through the administrator of his Estate Charles Odhiambo Gundo) & 11 others (Environment and Land Appeal E020 of 2023) [2025] KEELC 396 (KLR)", Case Analysis (2025). Not stated in the ruling (appeal from Kisumu CMCC; stay application ruled on 7th March 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/396/eng@2025-02-03

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