Osaga & 4 others v Marwanga (Environment and Land Appeal E008 of 2023) [2026] KEELC 3878 (KLR)
The bottom line
#Kenya's Environment and Land Court halved a Kshs. 400,000 stay-of-execution deposit to Kshs. 200,000, ruling that security terms must not block access to justice.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this court has jurisdiction to entertain this application
- 2.If yes, whether the court became functus officio when it pronounced itself on the issue of security on 15th July 2025
- 3.If the answer is in the negative, whether the conditions granted to the Applicants for stay of execution pending appeal should be reviewed
- 4.Who should bear the costs of the application
Key legal issues
#Whether the court has jurisdiction to review its own order on security for stay of execution
The court has jurisdiction under Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules to review the order on security, as the Applicants are not seeking to review the judgment which is before the Court of Appeal
The court distinguished between the judgment, which is before the Court of Appeal, and the ancillary order on security for stay. Since the application targets only the security condition, invoking the ground of 'any other sufficient reason' under Order 45 rule 1(2), the review jurisdiction under Section 80 and Order 45 is properly engaged.
Whether the court became functus officio after issuing the security orders
The court is not functus officio because it has statutory jurisdiction to review its orders, and review does not reopen a case
Relying on Kabansora Millers Ltd v Nyangena and the cited Supreme Court authority, the court held that the functus officio doctrine yields to specific statutory exceptions such as review. Since the Respondent himself invoked Order 45 grounds, the court could consider the application on its merits within the review jurisdiction.
Whether the security condition of Kshs. 400,000 should be reviewed on the ground of any other sufficient reason
The deposit was reduced to Kshs. 200,000, balancing the Applicants' inability to pay against their unexplained delay in bringing the application
The court acknowledged that the Applicants delayed in seeking review and should have raised their financial position when the orders were made. However, security terms should not stifle access to justice or render an appeal nugatory. Weighing the parties' interests, the court fixed security at Kshs. 200,000, reflecting the delay, and granted stay within 45 days.
Legal principles established
#- A court that has been granted jurisdiction to review its orders does not become functus officio, because a review does not seek to reopen a case
- Terms of security for stay of execution should not be used to stifle a party's access to justice, especially where an appeal is not frivolous and is likely to be rendered nugatory
- An application for review must be made without unreasonable delay, and the Applicant must satisfactorily explain the delay however small
Court orders
#- 1.The condition to deposit Kshs. 400,000 as security for stay of execution pending appeal is varied and substituted with a deposit of Kshs. 200,000
- 2.The deposit is to be made within 45 days, failing which stay is granted only within that period
- 3.The Applicants shall bear the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules
Relief refused
#Reduction of the security deposit to Kshs. 100,000
The court balanced the interests of the parties and, considering the Applicants' delay in bringing the review application, fixed the deposit at Kshs. 200,000 instead
Alternative security in the form of a surety or undertaking not to alienate the suit property
The court opted for a monetary deposit of Kshs. 200,000 rather than the alternative forms of security proposed
Costs of the application to be in the cause
The court ordered the Applicants to bear the costs
Costs
The Applicant shall bear the costs of the application.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
the court having been granted jurisdiction to review its orders by law, it does not become functus oficio. There is a stark difierence between review and appeal. A review does not seek reopen a case.
the imposition of terms of security should not be used to stifie parties' access to justice, more so an appeal which does not demonstrate frivolity, which is likely to be rendered nugatory.
the Applicant must satisfactorily explain the delay however small it may be, besides it not being unreasonable. That is to say, he ought to give convincing reasons as to why he delayed in bringing the application.
Since the court is called upon to balance the interest of the parties, I will order a deposit of two hundred thousand Kshs. 200,000/- considering the time they have taken to bring this application. Within 45 days if execution. Stay granted
he has obtained eviction orders (which evidence he did not annex to his replying afidavit, yet he who alleges ought to prove the existence or non existence of a fact)
Issues in the judgment
#The judgment gives conflicting dates for the order sought to be reviewed - the application seeks review of orders issued on 15th July 2025 but the Respondent's submissions refer to orders granted on 15th July 2024
The court's ruling is confusing and internally inconsistent on the stay terms, ordering a deposit within 45 days yet also stating 'Stay granted' without clarity on the consequence of non-compliance
Inconsistent reference to the Respondent's counsel - the court records 'No appearance for Nyambati for the Respondents' while the Respondent filed pleadings and submissions, and the party roles shift between plural and singular
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Osaga & 4 others v Marwanga (Environment and Land Appeal E008 of 2023) [2026] KEELC 3878 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3878/eng@2026-06-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.