Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedSiaya ELC Case No. 51 of 2021 (Notice of Motion dated 2/10/2024)· [2025] KEELC 4594 (KLR)

Oduol v Yuala (Environment & Land Case 51 of 2024) [2025] KEELC 4594 (KLR)

Environment and Land Court of Kenya
19 June 2025
1,899 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~8 min to read original · ~4 min brief

The bottom line

#

A Siaya court refused to pause a land decree on appeal because the applicant showed no evidence of loss, and a decree with only negative orders cannot be stayed.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Siaya (A.E. Dena, J) determines a Notice of Motion dated 2/10/2024 by the plaintiff, Alfred Ogolla Adol, seeking a stay of execution of the decree arising from the judgment delivered on 19th September 2024 in Siaya ELC Case No. 51 of 2021, pending an appeal to the Court of Appeal. The application was brought under Order 42 Rule 6 of the Civil Procedure Rules, supported by the applicant's affidavit alleging that the defendant, Joseph Onyango Yuaya, was likely to evict him from the suit land, rendering the appeal nugatory. The defendant opposed the application, asserting the plaintiff resides elsewhere and would suffer no loss. The court disregarded a second replying affidavit filed without leave and a further affidavit responding to it. Framing the sole issue as whether the requirements for stay were met, the court applied the established tripartite test of substantial loss, absence of unreasonable delay, and security, drawing on Vishram Ravji Halai, Kenya Shell, and James Wangalwa. It found that substantial loss was not proved: the alleged evictions, tree-cutting and demolitions were raised only in submissions, which cannot replace evidence, and the burden of proof lay on the applicant. Critically, the judgment of 19/09/2024 issued no positive orders save for costs, and a negative order incapable of execution cannot be stayed. The application was dismissed with each party bearing its own costs.

Key legal issues

#
01

Whether substantial loss had been demonstrated to justify a stay of execution pending appeal

Holding

No substantial loss was shown; the applicant gave no evidence of the alleged evictions, demolitions and destruction of property, and the decree under appeal contained only negative orders and an award of costs

Reasoning

The court examined the supporting affidavit and found no depositions confirming the alleged cutting of trees, uprooting of crops or demolition of houses. It reiterated that execution is a lawful process and that striking out an appeal merely leaves the applicant in his prior position, so the appeal cannot be rendered nugatory. The applicant failed to discharge the burden of proving the exceptional inconvenience required under Order 42 Rule 6.

p. 4
02

Whether the delay requirement and security conditions under Order 42 Rule 6 were satisfied

Holding

Having found failure on the substantial loss limb, the court found the application could not be sustained and dismissed it

Reasoning

The court identified the three essential principles from Order 42 Rule 6 - substantial loss, no unreasonable delay, and security - drawing on Vishram Ravji Halai and Butt v Rent Tribunal. It proceeded to determine substantial loss first and, finding it unproved and the decree incapable of execution, concluded the application failed without needing to determine the remaining limbs.

p. 3

Legal principles established

#
  • Submissions do not take the place of evidence
  • An applicant for stay bears the burden of proving substantial loss; mere assertion is insufficient
  • A negative order, which directs no party to do or refrain from doing anything, is incapable of being stayed save in respect of costs

Court orders

#
  1. 1.The Notice of Motion dated 2/10/2024 seeking stay of execution pending appeal is dismissed
  2. 2.Each party to bear its own costs of the application
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules 2010; Article 50(1) and 159(2) of the Constitution of Kenya 2010; Sections 1A, 1B and 63 of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Later judgments citing this (1)

#

Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

#

Cite this brief

Caselaw, "Oduol v Yuala (Environment & Land Case 51 of 2024) [2025] KEELC 4594 (KLR)", Case Analysis (2025). Siaya ELC Case No. 51 of 2021 (Notice of Motion dated 2/10/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4594/eng@2025-06-19

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