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ELCDismissedNot stated in the judgment· [2025] KEELC 1083 (KLR)

Juma v Khayundi (Environment & Land Case E002 of 2021) [2025] KEELC 1083 (KLR)

Environment and Land Court (or superior court of first instance, Kakamega)
27 February 2025
ANA. Nyukuri
1,195 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~5 min to read original · ~4 min brief

The bottom line

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The Kakamega court refused to pause execution of a judgment because the applicant delayed a year, filed no proper appeal, and the decree only struck out her suit.

What this practically means

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Executive summary

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The plaintiff/applicant, Magrate Oyiela Juma, moved the court by Notice of Motion dated 6th February 2025 seeking a stay of execution of the decree delivered on 31st January 2024, pending an appeal she said she had lodged in the Court of Appeal. She argued that execution by the defendant would render her appeal nugatory. The defendant, Mohammed Omollo Khayundi, opposed the application, contending that no appeal had been proved, that no substantial loss was demonstrated, that the application was brought after inordinate delay, that no security was offered, and that the suit had itself been dismissed as res judicata. The court framed a single issue: whether the applicant met the threshold for stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules. Applying the requirements of substantial loss, absence of unreasonable delay, and security, the court found the application tainted with inordinate delay, having been filed a year after judgment. Critically, the decree merely struck out the plaintiff's suit with costs and contained no positive orders against her, rendering it incapable of being stayed. Further, although a Notice of Appeal had been filed on 13th February 2024, the applicant did not demonstrate that a Memorandum and Record of Appeal were filed within 60 days as required by Rule 83 of the Court of Appeal Rules 2010, so there was no pending appeal. The court therefore dismissed the application with costs to the defendant.

Key legal issues

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01

Whether the applicant met the threshold for stay of execution pending appeal under Order 42 Rule 6

Holding

The application failed: it was tainted with inordinate delay (filed a year after judgment), the decree contained only negative orders incapable of stay, and no appeal was demonstrated as filed before the Court of Appeal.

Reasoning

Order 42 Rule 6 requires satisfaction that substantial loss may result, that the application was made without unreasonable delay, and that security has been given. The application was brought a year after judgment, which is inordinate delay. The decree striking out the suit had no positive orders against the applicant. Further, although a Notice of Appeal was filed, no Memorandum and Record of Appeal were filed within 60 days under Rule 83 of the Court of Appeal Rules, so there was no pending appeal upon which stay could be premised.

p. 3

Legal principles established

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  • A decree containing only negative orders, such as striking out a suit, is incapable of being stayed
  • Execution is a lawful process and imminent execution alone does not amount to substantial loss justifying a stay

Court orders

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  1. 1.The plaintiff's Notice of Motion dated 6th February 2025 is dismissed
  2. 2.Costs of the application to the defendant/respondent
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules

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, "Juma v Khayundi (Environment & Land Case E002 of 2021) [2025] KEELC 1083 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1083/eng@2025-02-27

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