Ombe & another (Suing as Administrator of the Estate of Stephen Abur Ombe (Deceased)) v Sule (Sued in his Capacity as the Administrator of the Estate of Richard Sule Awili (Deceased)) (Enviromental and Land Originating Summons E007 of 2023) [2025] KEELC 4844 (KLR)
The bottom line
#A Kenyan court cannot order a stay of execution against a judgment that simply dismissed the plaintiff's case, because there is nothing in it to enforce.
What this practically means
#Executive summary
#Key legal issues
#Whether stay of execution lies over a negative order
No. A judgment that merely dismisses a suit with costs is a negative order with nothing to execute or stay, save possibly costs
The court perused its own judgment of 7th November 2024 and confirmed it only dismissed the Applicants' suit with costs; no eviction or other mandatory order was made. Relying on Western College v Oranga and David Kipruto Chingi, the court held there is nothing arising from the judgment to enforce or restrain, so a stay application in respect of it must fail.
Whether threatened eviction by the Respondent amounts to execution of the judgment
It does not; eviction steps taken without an eviction order in the judgment are not execution of that judgment
The Applicants' grievance was that the Respondent was moving to evict them pending appeal. The court found that since the judgment contained no eviction order, any eviction steps could not be execution of the judgment and therefore fell outside the scope of Order 42 Rule 6 stay.
Legal principles established
#- An order of stay of execution cannot be granted in respect of a negative order (a judgment merely dismissing a suit with costs)
- Steps taken towards eviction following a dismissal without an eviction order are not execution of the judgment
Court orders
#- 1.The Notice of Motion dated 28th March 2025 seeking stay of execution is dismissed
- 2.Costs to the Respondent
- Jurisdiction invoked
- Order 42 Rule 6 Civil Procedure Rules 2010 and sections 1A and 3B of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ombe & another (Suing as Administrator of the Estate of Stephen Abur Ombe (Deceased)) v Sule (Sued in his Capacity as the Administrator of the Estate of Richard Sule Awili (Deceased)) (Enviromental and Land Originating Summons E007 of 2023) [2025] KEELC 4844 (KLR)", Case Analysis (2025). ELC E007/2023 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4844/eng@2025-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.