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ELCPartially AllowedSiaya MCELC Appeal (Stay Applications dated 3rd June 2025 and 12th November 2025 arising from MCELC No. 69 of 2019)

Onyango v Abony & 3 others (Environment and Land Appeal E027 of 2025) [2026] KEELC 1925 (KLR)

Environment and Land Court of Kenya
10 April 2026
5,268 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~21 min to read original · ~4 min brief

The bottom line

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The court paused enforcement of the land judgment pending appeal, but only if the appellant deposits Kshs. 150,000 within 45 days.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Siaya (A. E. Dena, J) disposed of two applications by Nehemiah Mwanda Onyango, the appellant against the judgment of Hon. Benjamin Limo delivered on 20th May 2025 in Siaya MCELC No. 69 of 2019, which dismissed his land claim with costs. The first Notice of Motion dated 3rd June 2025 sought stay of execution of the judgment and decree pending appeal under Order 42 Rule 6 of the Civil Procedure Rules. The second, dated 12th November 2025, sought stay of the taxed costs of Kshs. 171,400/- and leave to produce and rely on a ruling of 10th November 2025 in Kisumu Succession Cause No. 195 of 2016 revoking the grant of the late Dolrosa Akinyi Ochieng, which the applicant argued invalidated the sale and transfer chain to the 1st respondent. On stay, the court found substantial loss demonstrated: if the suit property (Central Alego/Hono/1560) were sold, transferred or charged to third parties during the appeal, the substratum of the appeal would be rendered nugatory. It also rejected the argument that the dismissal was a non-executable negative order, noting the costs decree. Stay was granted conditioned on a deposit of Kshs. 150,000/- within 45 days, failing which the stay lapses. On additional evidence, applying the Supreme Court principles in Muhammed Abdi Muhammed and Attorney General v Zinj Limited, leave was declined because the revocation proceedings' pendency was never disclosed at trial, admission would prejudice the respondent who did not participate in the succession matter, and the proper forum for challenge was the court that issued the orders. Costs of both applications abide the appeal. The applicant's out-of-time submissions were disregarded as unprocedural.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant has demonstrated sufficient grounds for the grant of stay of execution of the judgment and decree of the trial court pending appeal
  2. 2.Whether the applicant has met the statutory threshold for leave to produce and rely on additional evidence (the ruling of 10th November 2025 in Kisumu Succession Cause No. 195 of 2016) on appeal

Key legal issues

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01

Whether substantial loss was demonstrated to warrant stay of execution pending appeal

Holding

Stay granted subject to a deposit of Kshs. 150,000/- as security and maintenance of the status quo of the register of the suit property

Reasoning

The applicant's apprehension that the suit property could be sold, transferred or charged to third parties would place the substratum of the appeal beyond the reach of the appellate court, rendering the appeal nugatory. The 1st respondent, already in possession, would suffer no prejudice from a stay. The court invoked Order 42 Rule 6 requirements: substantial loss, no unreasonable delay, and security, guided by Amal Hauliers and Butt v Rent Tribunal.

p. 7
02

Whether the dismissal judgment was a negative order incapable of execution

Holding

The argument was rejected; the costs order in favour of the respondents meant the decree was capable of execution

Reasoning

Counsel for the respondents relied on David Kipruto Chingi to argue that stay of a dismissal (a negative order) cannot lie. The court held the objection was answered by its analysis and noted that costs had been awarded, making execution a live prospect, with the 4th respondent's taxed bill of costs imminent for execution.

p. 7
03

Whether leave should be granted to adduce additional evidence (the revocation ruling) on appeal

Holding

Leave declined

Reasoning

Applying the Supreme Court's principles in Muhammed Abdi Muhammed and Attorney General v Zinj Limited, the court found the pendency of the revocation summons existed at trial but was never disclosed; the applicant's counsel was the same counsel in the succession matter; admission would prejudice the respondent who was not a party to the succession proceedings; and the competent forum for challenging the revocation orders is the court that issued them.

p. 10
04

Whether the applicant's late and unprocedurally filed submissions should be considered

Holding

The court declined to consider the applicant's submissions filed out of time without leave

Reasoning

The submissions dated 2nd March 2026 were filed after the 18th February 2026 deadline and no leave was sought. The court held that an apology in submissions for delay and counsel's illness was unprocedural, and relied instead on the applications, supporting affidavits and the law.

p. 5

Legal principles established

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  • Substantial loss is the main parameter to be demonstrated by an applicant seeking stay of execution pending appeal
  • An arguable appeal need not be one that must necessarily succeed
  • An appeal would be rendered nugatory where the subject property, being the substratum of the appeal, is disposed of to third parties who would not be parties to the appeal

Court orders

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  1. 1.Stay of execution of the judgment delivered on 20th May 2025 by Hon. Benjamin Limo and all consequential orders and decree, with status quo of the register of suit property Central Alego/Hono/1560 maintained by prohibition of registration of any disposition, charge or interests pending the hearing of the appeal
  2. 2.The applicant/appellant shall, within 45 days from delivery of the ruling, deposit Kshs. 150,000/- with the court pending hearing and determination of the appeal
  3. 3.In default of the deposit of security, the order of stay of execution shall automatically lapse
  4. 4.The application dated 12th November 2025 is dismissed to the extent that leave to produce and rely on the ruling dated 10th November 2025 in Kisumu Magistrates Court Succession No. 195 of 2016 is declined
  5. 5.Costs of both applications to abide the outcome of the appeal

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Magistrates' Court at Siaya
MCELC No. 69 of 2019
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules and Sections 1A, 1B, 3, 3A and 63(e) of the Civil Procedure Act

Relief refused

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Leave to produce and rely on the ruling dated 10th November 2025 in Kisumu Magistrates Court Succession No. 195 of 2016 revoking the Grant

The pendency of the revocation summons was not disclosed to the trial court; admission would prejudice the respondent who did not participate in the succession proceedings; concerns of bona fides and improper forum

p. 10

Costs

The costs of both applications shall abide the outcome of the appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

There be an order of stay of execution of the Judgement delivered on 20th May, 2025 by Hon. Benjamin Limo and all the consequential orders and decree.
p. 10final orders - stay granted
In default of 2) above the order of stay of execution will automatically lapse.
p. 10final orders - lapse of stay on default
The costs of both applications shall abide the outcome of the appeal.
p. 10final orders - costs
The upshot of the foregoing is that I decline to grant leave as prayed.
p. 10additional evidence - leave declined
…the issue of substantial loss is the cornerstone of both jurisdictions. Substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.
p. 6substantial loss as cornerstone of stay
the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just
p. 5jurisdiction under Order 42 Rule 6
we conclude that we can, in exceptional circumstances and on a case by case basis, exercise our discretion and call for and allow additional evidence to be adduced before us.
p. 8exceptional circumstances for additional evidence (Supreme Court)

Issues in the judgment

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minor

Judgment states costs were awarded to '1st and 2nd defendant' while the 1st respondent depones the award to the 2nd defendant was a clerical error since only the 1st and 4th defendants participated

minor

Contradictory depositions on whether an existing stay is in place in the subordinate court - respondent says applicant already has stay and separately refers to an application dated 05/11/2025 not before this court

minor

Body of ruling refers to 'the court found the titles impeachable' but the earlier summary of the trial judgment states the court found the title NOT impeachable

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, "Onyango v Abony & 3 others (Environment and Land Appeal E027 of 2025) [2026] KEELC 1925 (KLR)", Case Analysis (2026). Siaya MCELC Appeal (Stay Applications dated 3rd June 2025 and 12th November 2025 arising from MCELC No. 69 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1925/eng@2026-04-10

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