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ELCDismissedNotice of Motion dated 21st January 2025· [2025] KEELC 4637 (KLR)

Ashiono v Lihutsu & 3 others (Environment & Land Case 8 of 2020) [2025] KEELC 4637 (KLR)

Environment and Land Court
18 June 2025
ANA. Nyukuri
1,047 words in judgment
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The bottom line

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A Kakamega court refused to pause enforcement of a land judgment because the orders sought to be stayed were negative orders with no appeal filed against them.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kakamega (A. Nyukuri, J) determined a Notice of Motion dated 21st January 2025 by the plaintiff, John Lihutsu Ashiono, seeking stay of execution of a judgment/order said to have been delivered on 24th October 2024 pending an intended appeal to the Court of Appeal, together with costs. The applicant relied on a Notice of Appeal filed on 19th November 2024, a proclamation notice from Dimonde Auctioneers and warrants of attachment, asserting that the 4th defendant intended to attach his movable property and that the appeal would be rendered nugatory. The respondents opposed through grounds of opposition, contending the application was incompetent, delayed without explanation, and that no stay could issue over taxed costs when no appeal on costs existed. The court framed a single issue: whether the applicant met the Order 42 Rule 6 threshold of substantial loss, absence of unreasonable delay, and security. Examining the record, the court found the suit had been dismissed for non-attendance on 18th January 2023, costs were taxed on 13th September 2023, and the application to set aside the dismissal was itself dismissed with costs on 24th October 2024. Both orders were negative orders incapable of being stayed, and no appeal lay against the taxation of costs, rendering Order 42 Rule 6 inapplicable. The application was dismissed with costs to the respondents on 18th June 2025.

Key legal issues

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01

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

Holding

The application failed: the orders sought to be stayed were negative orders, there was no appeal against the taxed costs, and Order 42 Rule 6 was inapplicable

Reasoning

The court found that the suit was dismissed for non-attendance on 18th January 2023 and the application to set that aside was itself dismissed on 24th October 2024, a negative order incapable of being stayed. The notice of appeal related only to the dismissal order, not the dismissal of the suit. As the taxation of costs was not appealed against, Order 42 Rule 6 could not support a stay in respect of it.

p. 3

Legal principles established

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  • Stay of execution pending appeal requires an applicant to demonstrate a filed appeal, substantial loss, absence of unreasonable delay, and willingness to furnish security
  • No stay pending appeal can be granted in respect of a decision not appealed against

Court orders

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  1. 1.Application dated 21st January 2025 dismissed with costs to the respondents
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, "Ashiono v Lihutsu & 3 others (Environment & Land Case 8 of 2020) [2025] KEELC 4637 (KLR)", Case Analysis (2025). Notice of Motion dated 21st January 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4637/eng@2025-06-18

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