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ELCAllowedNot stated in judgment text (application dated 28 February 2025; appeal referenced as from Ogembo case)· [2025] KEELC 5050 (KLR)

Ondara v Mogire (Environment and Land Appeal E008 of 2025) [2025] KEELC 5050 (KLR)

Environment and Land Court
1 July 2025
2,612 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~10 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This is a ruling of the Environment and Land Court at Kisii (Munyao Sila J) on an application dated 28 February 2025 seeking stay of execution of an eviction order issued by a Principal Magistrate's court, pending appeal. The respondents in the lower court had sued the applicants for eviction from land parcel Majoge/Bombaba/2083, asserting title inherited through succession to the estate of Clement Nyambasora; the applicants claimed they had purchased the land and obtained subdivisions (Majoge/Bombaba/2352, 2353 and 2354), which the respondents said were nullified by the High Court. The trial court upheld the respondents and ordered eviction. The respondents opposed the stay application, first contending that the appeal and application were filed by a firm not on record, no Order 9 Rule 9 leave having been obtained. The court held, following its own reasoning in Kisii ELCA E007 of 2022 and multiple authorities including Tobias M. Wafubwa v Ben Butali, that Order 9 Rule 9 does not apply to appeals: an appeal is fresh, independent proceedings and a new advocate need not seek leave to come on record, though compliance with Order 9 Rule 9 remains necessary for processes in the lower court file such as execution. On the merits of the stay, applying Order 42 Rule 6(2), the court found no unreasonable delay (application filed about two weeks after the 18 February 2025 judgment), found the applicants were in possession and would suffer irreparable loss if evicted, and declined to examine the validity of the allegedly cancelled titles as that would go to the appeal's merits. Stay was granted conditionally: each applicant to deposit Kshs. 100,000/= as security within 30 days (several liability), plus joint deposit of taxed lower court costs; failing which the stay lapses and the respondents may execute. Costs of the application were made costs in the appeal if deposits are made, otherwise to the respondents.

Key legal issues

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01

Whether Order 9 Rule 9 leave is required for a new advocate to file an appeal

Holding

It is not required; an appeal is fresh and independent proceedings and any advocate may be instructed for the appeal without leave

Reasoning

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.

p. 3
02

Whether stay of execution pending appeal should be granted

Holding

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

Reasoning

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.

p. 5
03

Whether the court should examine the validity of the applicants' cancelled titles

Holding

The court declined to do so, as it would go to the merits of the appeal

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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. 2.The security order is several against the applicants: an applicant who does not deposit the Kshs. 100,000/= may be evicted
  3. 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. 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

Authorities

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Legislation

  • Civil Procedure RulesOrder 9 Rule 9
  • Civil Procedure RulesOrder 9 Rule 10
  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure ActSection 1A
  • Environment and Land Court ActSection 3

Cases cited (7)

  • Francis Omondi Odhiambo v Hippolitus Omondi Ochieng
    [2022] eKLR
  • Magereza Savings & Credit Co-operative Society Limited v Samuel Gachini Wahiu & 881 others
    [2014] eKLR
  • Martin Mutisya Kiio & Another v Benson Mwendo Kasyali
    Machakos High Court Misc. Application No. 107 of 2013
  • Florence Hare Mkaha v Pwani Takawal Mini Coach and Mohamed Athman
    Mombasa HCCC No. 85 of 2010
  • Wilfred Mbogo & 5 others v Nelson Mwaniki
    [2016] eKLR
  • Kenya Pipeline Co. v Lucy Njoki Njuru
    [2014] eKLR
  • Tobias M. Wafubwa v Ben Butali
    [2017] eKLR
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

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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, "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.