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ELCPartially AllowedKilgoris ELC Appeal (stay application dated 22.04.2026 arising from Kilgoris CM ELC No. E055 of 2025)· [2026] KEELC 4582 (KLR)

Ondari v Konchellah & another (Land Case Appeal E008 of 2026) [2026] KEELC 4582 (KLR)

Environment and Land Court
20 July 2026
MMM.N. Mwanyale
1,516 words in judgment
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The bottom line

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The court stopped execution of the judgment, but only if the applicant deposits Kshs. 100,000 as security within 21 days.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kilgoris (Hon. M.N. Mwanyale, Judge) on a Notice of Motion dated 22 April 2026 by Joseph Momanyi Ondari, the defendant and counter-claimant before the trial court, seeking a stay of execution of the judgment and decree of 26 March 2026 in Kilgoris CM ELC No. E055 of 2025 pending appeal. The applicant argued the application was timeous, that the appeal was arguable, and that he would suffer substantial loss, including eviction from property he had extensively developed, rendering the appeal nugatory. The respondents opposed through grounds of opposition and submissions, contending the application was incompetent under Order 9 rule 9 of the Civil Procedure Rules because the applicant's advocate came on record after judgment without leave, and that the Order 42 rule 6 thresholds of arguable appeal, substantial loss and security were unmet, relying on Jacob Gichuhi Wanyanga v Hannah Wanjiru Wanganya. Framing four issues, the court first held, following Tobias M. Wafubwa v Ben Butali (2017, eKLR), that an appeal is a new proceeding, so no leave was needed for new counsel and the application was competent. On merit, the court found the application timeous, substantial loss deponed to, and held that arguability and nugatory aspects were not Order 42 rule 6 considerations. The court allowed the application, staying execution conditional on the applicant depositing Kshs. 100,000 as security within 21 days, failing which the stay lapses, with costs in the course.

Key legal issues

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01

Competence of application filed by advocate who came on record after judgment

Holding

Application competent; no leave required for new counsel on appeal

Reasoning

The respondent argued the application offended Order 9 rule 9 CPR as counsel came on record after judgment without leave. Relying on Tobias M. Wafubwa v Ben Butali (2017, eKLR), the court found that an appeal is a distinct and new proceeding, giving parties the right to choose counsel without leave or notice of change.

p. 3
02

Whether the Order 42 rule 6 threshold for stay was met

Holding

Application merited; delay not unreasonable, substantial loss shown, security ordered

Reasoning

The appeal was filed on 9 April 2026 and the application on 22 April 2026, which the court found timeous. Substantial loss was deponed to in terms of eviction from extensively developed property. Though the applicant did not depone on security, counsel offered to deposit security, and the court imposed Kshs. 100,000 within 21 days.

p. 4

Legal principles established

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  • An appeal is a new proceeding, so a party may engage new counsel on appeal without leave or a notice of change of advocates (adopting Tobias M. Wafubwa v Ben Butali)
  • Order 42 rule 6 stay requires substantial loss, absence of unreasonable delay, and security for due performance of the decree

Court orders

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  1. 1.There shall be a stay of execution of the judgment and decree issued on 26th of March 2026.
  2. 2.The Applicant shall deposit Kshs. 100,000 as security for performance of the decree within 21 days failure to which the orders for stay of execution shall lapse.
  3. 3.Costs of the application shall be in the course.

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6
  • Civil Procedure RulesOrder 9 rule 9
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (2)

  • Tobias M. Wafubwa vs. Ben Butali
    2017 (eKLR)
  • Jacob Gichuhi Wanyanga vs Hannah Wanjiru Wanganya
On appeal from
Kilgoris Chief Magistrate's Court (ELC)
CM ELC No. E055 of 2025
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules - 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, "Ondari v Konchellah & another (Land Case Appeal E008 of 2026) [2026] KEELC 4582 (KLR)", Case Analysis (2026). Kilgoris ELC Appeal (stay application dated 22.04.2026 arising from Kilgoris CM ELC No. E055 of 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4582/eng@2026-07-20

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