Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCAllowedNotice of motion dated 15th September 2025 (appeal from Kakamega MC ELC Case No. E512 of 2018)· [2025] KEELC 7440 (KLR)

Changiwa v Omwera & 3 others (Environment and Land Appeal E080 of 2025) [2025] KEELC 7440 (KLR)

Environment and Land Court
29 October 2025
ANA. NYUKURI
1,337 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court in Kakamega paused collection of a Kshs. 300,000 judgment, but only because the appellant agreed to deposit that full amount in court as security.

What this practically means

#

Executive summary

#
By a notice of motion dated 15th September 2025, the appellant — who had been sued as 4th defendant in Kakamega MC ELC Case No. E512 of 2018 and ordered to pay the 1st respondent Kshs. 300,000/= with interest by judgment dated 14th August 2025 — sought stay of execution pending his appeal. He argued that his appeal raised arguable grounds, including that the claim was time-barred, that the 1st respondent was estopped, and that the respondent had waived his claim by making him his witness; further, that he stood to suffer substantial loss as the 1st respondent's financial means were unknown and he might be unable to recover the decretal sum if paid. The application was opposed through grounds of opposition asserting impropriety, failure to meet the threshold, lack of prospects of success and laches. The court identified a single issue: whether the threshold under Order 42 Rule 6 of the Civil Procedure Rules for stay pending appeal was met. Relying on Butt v Rent Restriction Tribunal and Tropical Commodities Suppliers Ltd v International Credit Bank Ltd, the court found that the applicant's apprehension about the 1st respondent's ability to refund the decretal sum was undisputed, not having been countered by a replying affidavit, and could be addressed by security. The application was allowed: execution of the decree, to the extent it required payment of Kshs. 300,000/= with interest, was stayed pending appeal, conditional on the appellant depositing Kshs. 300,000/= in court within 30 days, failing which the stay would stand vacated. No costs order was made.

Key legal issues

#
01

Whether the threshold for stay of execution pending appeal under Order 42 Rule 6 was met

Holding

Stay granted conditional on the applicant depositing the decretal sum of Kshs. 300,000/= in court within 30 days

Reasoning

The applicant showed substantial loss arising from the 1st respondent's unknown financial means and possible inability to refund the Kshs. 300,000/= decretal sum if the appeal succeeded. The 1st respondent did not dispute this allegation through a replying affidavit. The court held that this apprehension could adequately be addressed by conditioning the stay on deposit of the decretal sum as security, satisfying the requirements of Order 42 Rule 6.

p. 3

Legal principles established

#
  • An applicant for stay pending appeal must demonstrate substantial loss, absence of unreasonable delay, and willingness to provide security for due performance of the decree
  • An applicant's apprehension about the decree-holder's ability to refund a decretal sum can be addressed by an order for provision of security

Court orders

#
  1. 1.Stay of execution of the decree issued in Kakamega MC ELC No. 512 of 2018 dated 14th August 2025, to the extent that the appellant was ordered to pay the 1st respondent Kshs. 300,000/= with interest, pending the hearing and determination of the appeal
  2. 2.The appellant to deposit in court Kshs. 300,000/= as security within 30 days of the ruling, in default of which the stay orders shall stand vacated
On appeal from
Magistrates' Court (Kakamega MC ELC Case No. E512 of 2018)
E512 OF 2018
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Changiwa v Omwera & 3 others (Environment and Land Appeal E080 of 2025) [2025] KEELC 7440 (KLR)", Case Analysis (2025). Notice of motion dated 15th September 2025 (appeal from Kakamega MC ELC Case No. E512 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7440/eng@2025-10-29

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