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ELCAllowedNotice of motion dated 27th March 2025 (Busia ELC)· [2026] KEELC 2600 (KLR)

Werimo (Suing as the legal representative of the Estate of Welimo Otswila) v Okwomi & 6 others (Environment and Land Case 30 of 2015) [2026] KEELC 2600 (KLR)

Environment and Land Court
30 April 2026
LWL. N. Waithaka
1,480 words in judgment
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The bottom line

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The Busia Environment and Land Court halted execution of a land judgment pending appeal, because the winning party missed its 30-day window to challenge the appeal as late.

What this practically means

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Executive summary

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The applicant filed a notice of motion dated 27th March 2025 seeking an interim order of stay of execution of a judgment delivered on 18th February 2025 pending an intended appeal to the Court of Appeal, together with costs. She deponed that the appeal was arguable, the application was filed timeously, and that execution would render the appeal nugatory; she asserted the suit land was her only source of livelihood and shelter and that execution would permanently dispossess her of her inheritance. The 2nd respondent opposed on the ground that the applicant resided on another parcel; the 5th respondent called the application a delaying tactic and argued the stay conditions were unmet; the 6th respondent contended the application was scandalous, vexatious and an abuse of process, and that the appeal was statutorily time barred as the notice of appeal was filed and served out of time without leave. The court framed three issues. On time bar, it held that although Rule 77 of the Court of Appeal Rules, 2022 requires a notice of appeal within 14 days, Rule 86 permits an application to strike out a notice of appeal within 30 days of service; since the 6th respondent never brought such an application, it lost the opportunity to raise the time-bar objection. On the stay conditions, the court found no inordinate delay and, the subject matter being land, found that execution could occasion substantial loss not compensable by damages. Balancing the applicant's right of appeal against the respondents' right to enjoy the fruits of judgment, the court granted stay of execution pending appeal on condition that the applicant deposit Kshs.150,000/- in court as security within 21 days, failing which the application would be deemed dismissed with costs; otherwise costs to abide the appeal.

Key legal issues

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01

Whether a time-barred notice of appeal cannot found an application for stay

Holding

The time-bar objection fails where the respondent never moved to strike out the notice of appeal within the period prescribed by Rule 86.

Reasoning

The 6th respondent argued the notice of appeal was filed out of time without leave, relying on Rule 77 of the Court of Appeal Rules, 2022 and s.95 of the Civil Procedure Act. The court held that Rule 86's proviso allows an affected party to apply to strike out a notice for non-compliance within 30 days of service. Since no such application was brought, the respondent lost the opportunity and the objection failed.

p. 3
02

Whether the applicant satisfied the conditions for stay of execution pending appeal

Holding

Stay granted: the application was filed without inordinate delay, and the land subject matter could be disposed of or alienated causing substantial loss not compensable in damages.

Reasoning

Applying Order 42 Rule 6(2), the court found no inordinate delay (application filed within a month of judgment), apprehension of substantial loss to the applicant's proprietary interest and livelihood, and balanced the applicant's right of appeal against the respondents' right to enjoy the fruits of judgment, tilting in favour of preserving the status quo, subject to security for costs.

p. 4

Legal principles established

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  • A respondent who wishes to challenge a notice of appeal for time bar must move to strike it out within the 30-day window provided by Rule 86 of the Court of Appeal Rules; failing that, the objection is lost.
  • In land matters, refusal of stay may occasion substantial loss incapable of being compensated by damages, justifying stay to preserve the status quo pending appeal.

Court orders

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  1. 1.Stay of execution of the judgment and/or decree delivered on 18th February 2025 pending the hearing and determination of the appeal
  2. 2.Applicant to deposit in court Kshs.150,000/- as security for costs within 21 days from the date of delivery of the ruling, failing which the application for stay shall be deemed dismissed with costs
  3. 3.Costs of the application to abide the outcome of the appeal

Authorities

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Legislation

  • Civil Procedure ActSection 66
  • Civil Procedure ActSection 95
  • Civil Procedure RulesOrder 42 Rule 6(2) and 6(4)
  • Court of Appeal Rules, 2022Rule 77(1) and (2)
  • Court of Appeal Rules, 2022Rule 79
  • Court of Appeal Rules, 2022Rule 86

Cases cited (2)

  • Mwawasi v Shako
    Civil Application E053 of 2023 (2024) KECA 632 (KLR) (7 June 2024) (Ruling)
  • Mistry Premji Ganji (Investments) Ltd v Kenya National Highways Authority
    (2019) eKLR
On appeal from
Environment and Land Court (judgment delivered 18th February 2025, intended appeal to the Court of Appeal)
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010 (stay of execution pending appeal)

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, "Werimo (Suing as the legal representative of the Estate of Welimo Otswila) v Okwomi & 6 others (Environment and Land Case 30 of 2015) [2026] KEELC 2600 (KLR)", Case Analysis (2026). Notice of motion dated 27th March 2025 (Busia ELC). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2600/eng@2026-04-30

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