Okwaro (Suing as the legal administratix of the Estate of the Late Benjamin Okwaro Esitika) v Opiyo (Environment and Land Appeal E045 of 2022) [2026] KEELC 4685 (KLR)
The bottom line
#A Homa Bay landowner who lost his case won a stay of eviction pending appeal, but only after depositing Kshs 300,000 plus costs as security within 30 days.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Applicant filed a notice of appeal
- 2.Whether the application was made without unreasonable delay
- 3.Whether the intended appeal is not frivolous and has a likelihood of success
- 4.Whether the Applicant offered security for the due performance of the decree
- 5.Whether there is a serious or imminent threat of execution
- 6.Whether the appeal would be rendered nugatory if stay is not granted
- 7.Whether the Applicant will suffer substantial loss
- 8.Whether refusal to grant the stay would inflict more hardship than it would avoid
Key legal issues
#Conditions for stay of execution pending appeal
The court enumerated and applied the conditions under Order 42 rule 6(2) as expanded by the Court of Appeal: notice of appeal, no unreasonable delay, arguable appeal, security, imminent threat of execution, nugatory aspect, substantial loss and hardship balance.
The court traced the principles from English authorities and Kenyan decisions, noting that although there is no specific legislation on the High Court's power to stay its own decisions pending appeal, Order 42 rule 6(2) conditions apply. Each condition was tested against the affidavit evidence, and the court found each satisfied or adequately demonstrated.
Whether there is substantial loss
The Applicant's 40-year occupation of the suit land and threatened eviction satisfied the substantial loss condition.
The court accepted that the Applicant had been in occupation for over 40 years and would be rendered homeless if evicted. Execution would create a state of affairs irreparably affecting the core of the Applicant's position pending appeal, satisfying the test in James Wangalwa v Agnes Naliaka Cheseto.
Security for due performance
An offer of security suffices; the court retains discretion to determine the security, and conditional stay may be granted.
Relying on Focin Motorcycle Co. Ltd v Ann Wambui Wangui and Cooperative Bank of Kenya Ltd v BIFU, the court held that a mere offer to provide security is a mark of good faith and it is for the court to determine the quantum. The stay was therefore made conditional on a deposit of taxed costs plus Kshs 300,000.
Legal principles established
#- The High Court's jurisdiction under Order 42 rule 6(2) is fettered by conditions of sufficient cause, substantial loss, furnishing of security, and no unreasonable delay.
- Substantial loss is a qualitative concept not quantified by formula.
- For an order to be stayed it must be capable of being executed; the purpose of stay is to preserve the status quo.
Court orders
#- 1.An order of stay of execution of the Judgment and Decree of this Honourable court, dated and delivered on the 11th December, 2025 and any consequential orders, and in particular, the implementation of the Eviction order in respect of LR NO HOMABAY/KAWERE KONYANGO/KARADING 3413 pending the hearing and determination of the intended Appeal to the Court of Appeal
- 2.An order of inhibition inhibiting any dealings and/or transactions over and in respect of LR NO HOMABAY/KAWERE KONYANGO/KARADING 3413 pending the hearing and determination of the intended Appeal to the Court of Appeal
- 3.The above orders are made on condition that the Applicant shall deposit the taxed costs, and a further sum of Kshs 300,000/=, in a joint interest earning account in a bank to be agreed by parties, most preferably Kenya Commercial Bank, being security for the due performance of the Decree, to be deposited within thirty (30) days from the date of the order
- 4.In case of default by the Applicant of the condition in (c) above, the order of stay of execution shall lapse and execution shall issue accordingly
- 5.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 42 Rule 6(1), (2) & (6) of the Civil Procedure Rules; Sections 1A, 1B, 3A & 63(e) of the Civil Procedure Act; Environment and Land Court Act; Article 27(1), 47, 48(1), 159 & 162 of the Constitution
- Consolidated with
- Ndhiwa SRMCC ELC No. 14 of 2020, Migori ELC Case No. 38 of 2020 (O.S)
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.
An order do issue for stay of Execution of the Judgment and Decree of this Honourable court, dated and delivered on the 11th December,2025 and any consequential orders , and in particular , the implementation of Eviction order in respect of LR NO HOMABAY/ KAWERE KONYANGO /KARADING 3413 pending the hearing and determination of the intended Appeal to the court of Appeal
The above orders ae made on condition that the Applicant shall deposit the taxed costs, and a further sum of Kshs 300,000/= in a joint interest earning account in a bank to be agreed by parties and most preferably Kenya Commercial Bank, being security for the due performance of the Decree to be deposited within thirty (30) days from the date of this order
In case of default by the Applicant, or the condition in (c) above, the order of stay of execution shall lapse and execution shall issue accordingly
The purpose of an order of stay of execution is to preserve the status quo and protect the applicants’ right of appeal from being rendered nugatory.
Weighing the risk I find that the Applicant faces the greater risk if evicted from the suit land considering the huge investment made on the suit land for the period of occupation which is no mean achievement .
Issues in the judgment
#The parties' role designations are internally inconsistent - the applicant seeking stay is variously called 'Respondent/Applicant' while the decree holder is 'Appellant/Respondent', and the background states judgment was 'in favour of the respondent' yet 'the Appellant's claim on trespass was struck out'.
Contradiction on whether the notice of appeal was filed in time, given the judgment's stated dates (judgment 11th December 2025; application filed 18th February 2026 - stated to be 'after 39 days').
Paragraph numbering is irregular - jumps from 71 to 74 in the Conclusion.
The applicant's case in paragraph 6 refers to 'The Applicants’ case' though only one applicant is named.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Okwaro (Suing as the legal administratix of the Estate of the Late Benjamin Okwaro Esitika) v Opiyo (Environment and Land Appeal E045 of 2022) [2026] KEELC 4685 (KLR)", Case Analysis (2026). Not expressly stated in the judgment (arising from Ndhiwa SRMCC ELC No. 14 of 2020 and Migori ELC Case No. 38 of 2020 (O.S), consolidated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4685/eng@2026-07-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.