Ondara v Mogire (Environment and Land Appeal E008 of 2025) [2025] KEELC 5050 (KLR)
The bottom line
#The Environment and Land Court in Kisii stopped an eviction, but only if each applicant deposits Kshs. 100,000 as security within 30 days.
What this practically means
#Executive summary
#Key legal issues
#Whether Order 9 Rule 9 leave is required for a new advocate to file an appeal
It is not required; an appeal is fresh and independent proceedings and any advocate may be instructed for the appeal without leave
The court reviewed its own prior ruling in Kisii ELCA E007 of 2022 and authorities including Francis Omondi Odhiambo, Magereza Savings & Credit, Wilfred Mbogo and Tobias M. Wafubwa, which hold that an advocate's instructions in a lower court are exhausted at the conclusion of trial, and an appeal is a new process in which parties may freely choose counsel. The objection to the application on this ground therefore failed.
Whether stay of execution pending appeal should be granted
Stay granted conditional on deposit of security, because the application was made timeously and the applicants, being in possession, would suffer irreparable loss if evicted
Judgment was delivered on 18 February 2025 and the application filed about two weeks later, so there was no unreasonable delay. The applicants were the parties in possession, which is why eviction was sought, and the court held they would suffer irreparable loss if evicted. Security was fixed at Kshs. 100,000/= per applicant plus jointly-deposited taxed lower court costs, conditional and several in nature.
Whether the court should examine the validity of the applicants' cancelled titles
The court declined to do so, as it would go to the merits of the appeal
The respondents argued the applicants' titles had been cancelled so no good appeal lay. The court held that determining that question would trespass on the merits of the pending appeal and confined itself to the three Order 42 Rule 6(2) principles.
Legal principles established
#- Order 9 Rule 9 of the Civil Procedure Rules does not apply to appeals; a new advocate may come on record for an appeal without leave or notice of change
- For execution or other processes in the lower court post-judgment, compliance with Order 9 Rule 9 remains necessary even where the appeal advocate is properly on record in the appeal
- The three conditions for stay pending appeal are absence of unreasonable delay, substantial loss, and security
Court orders
#- 1.Each applicant to deposit Kshs. 100,000/= as security to the respondents within 30 days, either in court or in a joint interest-earning account held by counsel for both parties; on losing the appeal the money is released to the respondents, on succeeding it is released to the applicants
- 2.The security order is several against the applicants: an applicant who does not deposit the Kshs. 100,000/= may be evicted
- 3.Applicants to jointly deposit the taxed costs of the lower court within 30 days (or within 30 days of assessment if not yet assessed); failing which the stay lapses and the respondents may execute the judgment
- 4.If the monies are deposited, costs of the application shall be costs in the appeal; if not deposited, the respondents shall have the costs of the application
- On appeal from
- Principal Magistrate's Court
- Ogembo case (number not stated)
- Jurisdiction invoked
- Appellate jurisdiction of the Environment and Land Court over appeals from the Principal Magistrate's Court (proceedings conducted under the Civil Procedure Rules, including Order 42 Rule 6(2))
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ondara v Mogire (Environment and Land Appeal E008 of 2025) [2025] KEELC 5050 (KLR)", Case Analysis (2025). Not stated in judgment text (application dated 28 February 2025; appeal referenced as from Ogembo case). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5050/eng@2025-07-01
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.