Ogada v Ngesa & another; National Bank of Kenya Limited & another (Interested Parties) (Environment and Land Appeal E097 of 2025) [2025] KEELC 8457 (KLR)
The bottom line
#A Kisumu court paused an eviction because the homeowner would suffer substantial loss, but only on condition he deposits Kshs 150,000 as security within 45 days.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss
The Applicant, whose home is on the suit land and faces eviction under the judgment, will suffer substantial loss if stay is not granted.
The judgment appealed against ordered the Applicant's eviction from the suit land and restrained him from dealing with it. Since he deposed that he has established his homestead on the land, eviction would occasion substantial loss. The court adopted the definition of substantial loss from Dr. Daniel Chebutuk Rotich v Morgan Kimaset Chebutuk as the totality of consequences the applicant would suffer.
Conditions for stay under Order 42 Rule 6(2)
The statutory conditions were met: substantial loss, no unreasonable delay, and an undertaking to provide security, justifying a conditional stay.
The court set out the three conditions in Order 42 Rule 6(2): substantial loss, application without unreasonable delay, and security for due performance of the decree. The Applicant pleaded no unreasonable delay and undertook to abide by conditions on security. The court allowed the stay conditional on a deposit of Kshs 150,000 within 45 days, failing which the stay lapses.
Unopposed application
The application was treated as unopposed because the Respondents' Replying Affidavit was not on file or the CTS platform.
Counsel for the Respondents informed the court that a Replying Affidavit dated 27th November 2025 had been filed, but no such affidavit was found on the physical court file or the CTS platform as at the date of the ruling. Absent evidence of filing, the court treated the application as unopposed and proceeded to determine it on the Applicant's material and the law.
Legal principles established
#- Substantial loss is assessed by the totality of the consequences an applicant is likely to suffer if stay is not granted
Court orders
#- 1.An order of stay of execution of the judgment dated 28th October 2025 in KISUMU CMC EL CASE NO. 13 OF 2020 granted pending determination of the appeal, on condition that the applicant deposits in court Kshs 150,000 as security within 45 days, failing which the stay lapses
- 2.Costs in the appeal
- On appeal from
- Chief Magistrate's Court, Kisumu (Environment and Land)
- KISUMU CMC EL CASE NO. 13 OF 2020
- Jurisdiction invoked
- Order 42 Rule 6(2) of the Civil Procedure Rules 2010 (stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ogada v Ngesa & another; National Bank of Kenya Limited & another (Interested Parties) (Environment and Land Appeal E097 of 2025) [2025] KEELC 8457 (KLR)", Case Analysis (2025). Kisumu ELC Appeal (arising from KISUMU CMC EL CASE NO. 13 OF 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8457/eng@2025-12-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.