Osaga & 4 others v Marwanga (Environment and Land Appeal E008 of 2023) [2026] KEELC 3878 (KLR) (17 June 2026) (Ruling)

Osaga & 4 others v Marwanga (Environment and Land Appeal E008 of 2023) [2026] KEELC 3878 (KLR) (17 June 2026) (Ruling) Neutral citation: [2026] KEELC 3878 (KLR) Republic of Kenya In the Environment and Land Court at Migori Environment and Land Appeal E008 of 2023 FO Nyagaka, J June 17, 2026 Between Hellen Magasi Osaga 1st Applicant Osaga Magasi 2nd Applicant Machera Magasi 3rd Applicant Peter Magasi 4th Applicant Magasi Magasi 5th Applicant and Fred O. Marwanga Respondent (On whether the Applicants’ conditions for security for stay of execution should be allowed) Ruling The Application 1.Before me is an application filed by the Applicants under Certificate of Urgency on 23rd October 2025. The application is brought under Sections 1A, 1B, 3A, and 80 of the Civil Procedure Act, and Order 45 Rule 1 of the Civil Procedure Rules. The Applicants seek the following Orders:a.That this Honourable Court be pleased to review and vary its orders issued on 15th July 2025 requiring the Respondents/Applicants to deposit the sum of Kenya Shillings Four Hundred Thousand (Kshs. 400,000) as security for stay of execution pending appeal.b.That the said condition be substituted with a more reasonable and affordable form of security as the Court may deem just and expedient, including partial deposit, provision of a surety, or an undertaking not to alienate or dispose of the suit property.c.That pending the hearing and determination of this application, this Honourable Court be pleased to order a temporary stay of execution of the decree and/or eviction orders.d.That costs of this application be in the cause 2.The application is premised on the grounds outlined on its face as well as the grounds set out in the Affidavit of Hellen Magasi, the 1st Applicant. The Applicants contend that they are unable to raise the Kshs. 400,000/- ordered by this court on 15th July 2025 as conditional stay of execution and pray that it be reduced to Kshs. 100,000/- or such other terms as the court may deem fit. The rationale for seeking the review of these stay of execution terms is that the Applicants state that they are persons from a humble background and have resorted to fundraisings so as to raise the Kshs. 400,000/- which they claim is too high an amount. They thus pray that this court grants them reasonable and affordable conditions such as a partial deposit, a surety bond, or an undertaking not to dispose of the property pending appeal. They stated that they were willing to deposit the Kshs. 100,000/- or such other conditions as the court may grant Response 3.The application is opposed by the Respondent who filed a Replying Affidavit dated 7th November 2025. He stated that he filed an application before this Court dated 4th September 2025 seeking orders of security and eviction. He stated that the Applicants deliberately refused to reply to the application and the Court granted the orders he sought. 4.The Respondent deponed that he had since executed the judgment of the Court and as such, the instant application is an afterthought. He also stated that the Court became functus officio once it pronounced itself in its judgment and ruling bearing in mind that the Applicants had since filed an appeal at the Court of Appeal. Moreover, he raised the issue of the delay in bringing the review application which he said was not done promptly. He added that the application was brought in too late after he and taken substantial steps towards execution proceedings, and these were well within the knowledge of the Applicants. 5.In addition to the foregoing, the Respondent also deponed that the Applicants have used his property for ten (10) years and denied him mesne profits over the suit property. He also deponed that the Applicants should have sought extension of time to comply with the conditions of the order granted by the court as opposed to a review and stated that he would be prejudiced should the application be allowed. 6.Lastly, the Respondent stated that the application has not met threshold for grant of the orders sought and prayed that the same be dismissed. Submissions 7.The application was canvassed via written submissions. The Applicants filed theirs dated 22nd January 2026. They identified four issues for determination, being: whether this Honourable Court has jurisdiction to review and vary its orders on security for stay of execution; whether the Applicants have demonstrated sufficient cause for review under Order 45 Rule 1; whether the security ordered is unreasonable and capable of denying the Applicants the right of appeal; and whether the interests of justice warrant substitution of the security condition with a lesser or alternative form of security. 8.On whether the court has jurisdiction to review and vary its orders on security for stay of execution, the Applicants relied on section 80 of the Civil Procedure Act as well as Order 45 Rule 1 of the Civil Procedure Rules to highlight the circumstances under which a review may be preferred. They also cited the Court of Appeal decision in National Bank of Kenya Ltd v Ndungu Njau [1997] eKLR, the Court of Appeal to submit that jurisdiction exists to correct or reconsider orders so as to meet the ends of justice. 9.On the issue as to whether the Applicants have demonstrated sufficient cause for grant of review orders under Order 45 Rule 1 of the civil Procedure Rules, they outlined the various grounds for review and stated that they are relying on the ground of ‘any other sufficient reason’’ as provided under Order 45 Rule 1 of the Civil Procedure Rules. They submitted that ‘‘any other sufficient reason’’ has been interpreted to include circumstances where compliance with an order is impossible, impractical, or oppressive, particularly in matters touching on security for stay. 10.The Applicants submitted further that they had demonstrated sufficient cause for the grant of the orders sought and added that courts should not impose upon parties the conditions for stay of execution that are punitive. They contended that Kshs. 400,000/- is way beyond their reach and excessive and stated that this is sufficient reason to merit the grant of the said orders. 11.Further, the Applicants submitted that failure to grant the review orders would amount to the lapsing for the conditional orders granted by the court, which would result in their eviction hence rendering their appeal nugatory. They concluded that where security is excessive as to be complied with, then the said security acts as a bar to access to justice. 12.On whether the security ordered is unreasonable and capable of denying the Applicants the right of appeal, they reiterated that they were subsistence farmers who were incapable of raising Kshs. 400,000/- as ordered by the Court. They relied on Focin Motorcycle Co. Ltd v Ann Wambui Wangui & Another |2018] eKLR and Kenya Shell Ltd v Benjamin Karuga Kibiru & Another [1986) KLR to submit that security should be reasonable and the same should not stifle an appeal. They maintained that they have demonstrated good faith in offering to deposit Kshs. 100,000/- and are willing to have a further undertaking not to alienate the suit property pending the appeal. 13.Lastly, on whether the interests of justice warrant the substation of the security with a lesser or alternative form of security, the Applicants submitted that eviction prior to the hearing of their appeal would expose them to substantial loss including loss of ancestral land, disruption of livelihoods and a possible destruction of the structures erected on the suit property. They submitted that granting unfair conditions for security undermines the right to fair hearing as guaranteed in Article 50 (1) of the Constitution of Kenya 2010. 14.In their concluding remarks, the Applicants prayed that the court be pleased to review and vary the order requiring deposit of Kshs. 400,000 as security pending determination of the appeal or substitute the order of the court requiring a deposit of Kshs. 400,000/-with a deposit of Kshs. 100,000. In the alternative, they prayed for such other reasonable security including an undertaking not to alienate the suit property, a grant of a temporary stay of execution pending the hearing and determination of the application. They also prayed that costs be in the cause. 15.The Respondent, on the other hand, filed his submissions dated 4th February 2026. He equally identified four issues for determination, being: whether the application for review meets the threshold of Order 45 of the Civil Procedure Rules; whether the court is functus officio; whether the application was filed within the reasonable time; and whether the application is an abuse of the courts process by delaying the enjoyment of the fruits of his judgment. 16.On whether the application meets the threshold for review under Order 45 of the Civil Procedure Rules, the Respondent highlighted the grounds for review provided under Order 45 and contended that the Applicants had neither raised any new evidence, and they had neither discovered nor identified an error of law on the face of the record. He also submitted that the Applicants had not demonstrated any sufficient cause to warrant the grant of the orders sought. 17.The Respondent submitted that the claim that the Applicants were poor and unable to raise the sum of Kshs. 400,000/= was not a ground for review and in any case, the same should have been raised at the time of granting the orders of stay of execution. He termed this excuse as unexplained, inexcusable and inordinate. 18.As to whether the court is functus officio, the Respondent submitted that the court determined the case and his application and rendered itself with finality. He submitted that the doctrine of functus officio gives finality to a decision such that once a judicial officer renders a final decision on a matter, he or she is not allowed to re-open the matter for further decision-making. 19.On whether the application was filed within reasonable time, the Respondent submitted the orders of the court which the Applicant seek to review were granted on 15th July 2024. However, they waited until 23rd October 2025 to seek a review of the orders. He contended that an application for review does not operate as a stay of exaction unless otherwise ordered by the court and also maintained the Applicants should have sought review within reasonable time. 20.Moreover, the Respondent submitted that there was not material placed before the court to help the court determine whether or not to exercise its discretion or not as was held in Dilpack Kenya Limited v William Muthama Kitonyi [2018] eKLR. He also stated that the reasons for the delay in filing the application for review was not given and thus prayed for the dismissal of the applications. 21.Lastly, on whether the application was an abuse of court process and a tactic to delay the Respondent from enjoying the fruits of his judgment, the Respondent answered in the affirmative. He stated that the Applicant did not annex the orders he wished the court to review hence the same cannot be reviewed as the application is defective and incompetent. 22.The Respondent also submitted that once the Applicants failed to deposit security as ordered by the court, he proceeded with the execution process and has since obtained orders of eviction against the Applicants. He contended that the instant application is an afterthought and the Applicants’ intention is to delay the course of justice and to prevent his from enjoying the fruits of his judgment. 23.Finally, the Respondent concluded that the Applicants had not met the threshold for grant of review orders. He contended their application was an afterthought meant to prevent him from enjoying the fruit of his judgment. He also contended that he had so far suffered loss in terms of mesne profits which the Applicants would not be able to compensate. His view is that the application should have been filed in the court of appeal. Issues, analysis and determination 24.The issues that emerge for determination in the instant application are as follows:a.Whether this court has jurisdiction to entertain this application;b.If yes to a) above, whether the court became functus officio when it pronounced itself on the issue of security on 15th July 2025;c.If the answer to b) is in the negative, whether the conditions granted to the Applicants for stay of execution pending appeal should be reviewed;d.And who should bear the costs of the application. 25.The Applicants submitted that the court has jurisdiction to review its orders dated 15th July 2025 pursuant to Section 80 of the Civil Procedure Act and Order 45 Rule 1 of the Civil Procedure Rules. The Respondent on the other hand submitted that the court does not have jurisdiction once it rendered the ruling on stay of execution and issued the orders sought to be reviewed. 26.I have duly considered the provisions that grant this court the powers to review its orders. I am satisfied that the Applicants are not seeking in the instant application to review the judgment of the court, which decision is before the court of appeal. Rather, they are seeking to review the orders of the requirement security for stay of execution which were granted by the court. The Applicants submitted that they seek to review the orders on the ground of “any other reason” as provided under Order 45 rule 1 (2) of the Civil Procedure Rules. In my humble view, that being the issue, this court has jurisdiction to consider whether or not to review the orders impugned. 27.As to whether court is functus officio, the court having been granted jurisdiction to review its orders by law, it does not become functus officio. There is a stark difference between review and appeal. A review does not seek reopen a case. That is not what the Applicant is seeking herein. Order 45 Rule 1 of the civil procedure rules is clear that the court had power to review its orders, judgments or decisions wherefrom an appeal had not been preferred as long as the Applicant meets the conditions of review it stipulates. 28.On whether the application is merited, this court begins by observing that the jurisdiction of a court to review is own decision is provided for, as correctly pointed out by the Applicants, in Section 80 of the Civil Procedure Act as well as Order 45 of the Civil Procedure Rules. Section 80 provides that:80.ReviewAny person who considers himself aggrieved—a.by a decree or order from which an appeal is allowed by this Act, but from which no appeal has been preferred; orb.by a decree or order from which no appeal is allowed by this Act, may apply for a review of judgment to the court which passed the decree or made the order, and the court may make such order thereon as it thinks fit.Order 45 rules 1-3 of the civil procedure rules provides that:1.Application for review of decree or order [Order 45, rule 1](1).Any person considering himself aggrieved—a.by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; orb.by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.(2)A party who is not appealing from a decree or order may apply for a review of judgment notwithstanding the pendency of an appeal by some other party except where the ground of such appeal is common to the Applicant and the appellant, or when, being Respondent, he can present to the appellate court the case on which he applies for the review.2.To whom applications for review may be made [Order 45, rule 2](1)An application for review of a decree or order of a court, upon some ground other than the discovery of such new and important matter or evidence as is referred to in rule 1, or the existence of a clerical or arithmetical mistake or error apparent on the face of the decree, shall be made only to the judge who passed the decree, or made the order sought to be reviewed.(2)If the judge who passed the decree or made the order is no longer attached to the court, the application may be heard by any other judge who is attached to that court at the time the application comes for hearing.(3)If the judge who passed the decree or made the order is still attached to the court but is precluded by absence or other cause for a period of 3 months next after the application for review is lodged, the application may be heard by such other judge as the Chief Justice may designate.3.When court may grant or reject application [Order 45, rule 3](1)Where it appears to the court that there is not sufficient ground for a review, it shall dismiss the application.(2)Where the court is of opinion that the application for review should be granted, it shall grant the same:Provided that no such application shall be granted on the ground of discovery of new matter or evidence which the Applicant alleges was not within his knowledge, or could not be adduced by him when the decree or order was passed or made without strict proof of such allegation. 29.The Supreme Court in Macharia & another v Kenya Commercial Bank Ltd & 2 others (Application 2 of 2011) [2012] KESC 8 (KLR) (23 October 2012) (Ruling) determined that jurisdiction is provided by the constitution and/statute by holding as hereunder:‘68.A Court’s jurisdiction flows from either the Constitution or legislation or both. Thus, a Court of law can only exercise jurisdiction as conferred by the constitution or other written law. It cannot arrogate to itself jurisdiction exceeding that which is conferred upon it by law...’’ 30.The Rule on the issue imposes a further or fourth condition which embraces and applies to the three above: that the application be made without unreasonable delay. Thus, 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. 31.These conditions have been enunciated in a number of many decisions which I need not repeat in this decision. But for avoidance of doubt about the clarity thereof, the parties herein are referred to the Supreme Court decision of Wachira Karani v Bildad Wachira (2016) eKLR where the Court explained that sufficient cause (or reason) is a question of fact and the Court of Appeal decision of Muyodi -v- Industrial and Commercial Development Corporation & Another (2006) 1 EA 243 and the persuasive decisions of re Estate of Japhet Avugwi Luseno (Deceased) [2020] eKLR and Francis Njoroge Vs Stephen Maina Kamore (2018) eKLR which emphasize the need to proof the four conditions before an order of judicial review issues. 32.Moreover, the Avugwi Luseno case brought out clearly the idea that applications for review are not meant to substitute the remedy of appeal. I agree. The remedy of review should be of strict application and limitation to the grounds which the Act and Rules provide for. 33.Herein, the Applicants submitted that they are unable to raise the security ordered by the court. They submitted that they are peasant farmers without means to raise the said amount. The Respondent, on the other hand, stated that the reason given is an afterthought. He stated that he has executed the judgment of the court and has obtained eviction orders (which evidence he did not annex to his replying affidavit, yet he who alleges ought to prove the existence or non existence of a fact). 34.As to whether court is functus officio, the court having been granted jurisdiction to review its orders by law, it does not become functus officio. As stated before, an application for review does not seek reopen a case. Rather it requires the court to consider new issues that come up which could have made the Court arrive at a different decision were they to be available at the time of the decision. This position was aptly explained in Kabansora Millers Ltd v Nyangena (Civil Appeal E665 of 2022) [2025] KEHC 4754 (KLR) (Civ) (27 March 2025) (Ruling) where the court, after analysis of several precedents arrived at this conclusion. The court determined that:‘‘9.The doctrine of functus officio dictates that once a court has rendered its final decision, it ceases to have jurisdiction over the matter, save for specific exceptions such as review or correction of clerical or arithmetical errors.10.In expounding on the functus officio doctrine, the Supreme Court in Odinga v Independent Electoral & Boundaries Commission & 3 others (Petition 5, 4 & 3 of 2013) [2013] KESC 8 (KLR) (Civ) (24 October 2013) (Ruling) where the Supreme Court held that once a court delivers its judgment, it becomes functus officio and cannot review or reopen the matter unless provided under specific provisions of the law to ensure legal certainty and justice.11.In Telkom Kenya Limited v Ochanda (Suing on his own Behalf and on Behalf of 996 Former Employees of Telkom Kenya Limited) [2015] KESC 18 (KLR), and Kenya Airports Authority v Mitu- Bell Welfare Society & 2 others [2016] eKLR , the Court of Appeal reaffirmed the doctrine of functus officio, holding that once a court has fully and finally adjudicated upon a matter, it cannot reopen or reconsider the case, except under defined circumstances such as through a successful application for review.12.The functus officio principle serves to ensure finality in judicial decisions and prohibits courts from revisiting matters already conclusively determined, except where expressly permitted by law. It promotes judicial efficiency, certainty, and the integrity of the judicial process.13.In the present case, the Respondent has invoked Order 45, which provides for review under specific grounds, including the discovery of new and important evidence, an error apparent on the face of the record, or any other sufficient reason. In light of this, the court is not necessarily functus officio, and may consider the application on its merits within the confines of the review jurisdiction. (emphasis added) 35.Having found that the court is not functus officio in this matter, I will now proceed and determine whether the instant application is merited. I am alive to the fundamental principle, and I am persuaded, that the imposition of terms of security should not be used to stifle parties’ access to justice, more so an appeal which does not demonstrate frivolity, which is likely to be rendered nugatory. In RWW v EKW [2019] KEHC 6523, the court held as follows:8.The purpose of an application for stay of execution pending an appeal is to preserve the subject matter in dispute so that the rights of the appellant who is exercising the undoubted right of appeal are safeguarded and the appeal if successful, is not rendered nugatory. However, in doing so, the court should weigh this right against the success of a litigant who should not be deprived of the fruits of his/her judgment. The court is also called upon to ensure that no party suffers prejudice that cannot be compensated by an award of costs.9.Indeed to grant or refuse an application for stay of execution pending appeal is discretionary. The Court when granting the stay however, must balance the interests of the Appellant with those of the Respondent. In that regard what is at stake in this cause is that if the stay herein is not granted the Respondent would be at liberty to sell the immovable property and the proceeds thereof distributed or distribute the property 50:50. 36.Thus, regarding delay or otherwise, I agree with the Respondents that the application ought to have been brought timeously as required under Order 45 of the Civil Procedure Rules. Be that as it may, I am also persuaded that security terms should not be used to stifled parties’ access to justice, more so an appeal which is likely to be rendered nugatory. The Applicants ought to have known that they could raise the security at the time the orders were granted. They delayed in bringing the application for review. They are willing to deposit Kshs. 100,000/- as security. 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 37.On costs, the Applicant shall bear the same. 38.Orders accordingly. RULING DATED, SIGNED AND DELIVERED VIRTUALLY VIA THE TEAMS PLATFORM THIS 17TH DAY OF JUNE 2026.HON. DR. IUR NYAGAKAJUDGEFrom 14:03 Hours In the presence of,Mr. Owino for ApplicantsNo appearance for Nyambati for the Respondents