Momanyi & another v Ongwae & 3 others (Environment and Land Case E007 of 2023) [2026] KEELC 4201 (KLR)
The bottom line
#The Environment and Land Court in Kisii dismissed an attempt to reduce a Kshs 6 million stay condition, confirming that disagreements with a judge's decision belong in an appeal, not a review.
What this practically means
#Executive summary
#Key legal issues
#Whether the Kshs 6,000,000 deposit order contains an error apparent on the face of the record
No error apparent on the face of the record; the additional Kshs 3,000,000 beyond the general damages was deliberately imposed to compensate for opportunity cost and loss of use of the land during the appeal
The trial judge's ruling expressly justified the extra Kshs 3,000,000 as compensation for opportunity costs and time value, since the stay deprived the plaintiffs of the use of the suit land for a 2-3 year appeal period. Reading the ruling as a whole, the security was not limited to the decretal sum. The applicant misread the ruling by confining the record to the amount awarded as general damages.
Whether review or appeal is the proper remedy for challenging the stay conditions
Review is not the proper remedy; the complaint concerns the exercise of discretion and must be pursued by appeal
Order 45 permits review for error apparent on the face of the record or sufficient reason, but what the applicant impugns is not such an error; it is a finding with which he disagrees. Altering a judge's discretionary determination on conditions of stay would amount to the court sitting on appeal from a decision of a judge of concurrent jurisdiction, which is irregular and unlawful.
Legal principles established
#- A decision alleged to rest on a misapprehension of law or a wrongful exercise of discretion must be corrected by appeal, not review, unless the error is apparent on the face of the record and requires no elaborate argument.
Court orders
#- 1.The application dated 30th March, 2026 is dismissed with costs to the Respondents
- Jurisdiction invoked
- Section 80 of the Civil Procedure Act and Order 45, Rules 1 and 2 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Momanyi & another v Ongwae & 3 others (Environment and Land Case E007 of 2023) [2026] KEELC 4201 (KLR)", Case Analysis (2026). Not stated in the judgment (application dated 30th March, 2026 within the principal suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4201/eng@2026-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.