Isiye v Kennedy & another (Environment and Land Appeal E075 of 2024) [2025] KEELC 4855 (KLR)
The bottom line
#A Kenyan court dismissed a landowner's bid to stop auction of his land because he never attached the actual court order he wanted stayed.
What this practically means
#Executive summary
#Key legal issues
#Whether the appeal was incompetent for want of leave to appeal
The preliminary objection failed because neither party attached the ruling or order appealed against, so the court could not determine whether leave was required.
Order 43 of the Civil Procedure Rules distinguishes appeals lying as of right from those requiring leave, including in respect of Order 22 execution orders. The court noted that the parties did not attach the ruling of 23rd October 2024, so it could not establish the legal basis of the order or whether leave was necessary. The burden of demonstrating incompetence was on the 1st respondent and it was not discharged.
Whether stay of execution pending appeal should be granted
The application was dismissed because the appellant did not attach the order he sought to stay, making it impossible to assess the application.
Under Order 42 Rule 6, an applicant must show substantial loss, that the application was made without unreasonable delay, and willingness to provide security. Applying Butt v Rent Restriction Tribunal, the court found the appellant's affidavit referred to the order of 23rd October 2024 without attaching it, while the motion sought stay of a different order of 15th November 2024, also not attached. The court therefore could not appreciate the basis of the application and dismissed it with costs.
Legal principles established
#- Imminent execution in itself is not a basis for stay; the applicant must demonstrate substantial loss, absence of unreasonable delay and willingness to furnish security.
- Not every court order is capable of being stayed; the order sought to be stayed must be placed before the court.
Court orders
#- 1.The application dated 6th May 2025 is dismissed
- 2.Costs of the application to the respondent
- On appeal from
- Butali Magistrates' Court (MC ELC 45 of 2019)
- Butali MC ELC 45 of 2019
- Jurisdiction invoked
- Appellate jurisdiction under Order 42 and Order 43 of the Civil Procedure Rules (appeal from magistrates' court; Order 42 Rule 6 stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Isiye v Kennedy & another (Environment and Land Appeal E075 of 2024) [2025] KEELC 4855 (KLR)", Case Analysis (2025). Not stated in the extract (appeal against ruling of 23rd October 2024 in Butali MC ELC 45 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4855/eng@2025-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.