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ELCDismissedApplication dated 10/7/2025 in the principal suit (ELC Kitale)· [2025] KEELC 7193 (KLR)

Ethics and Anti-Corruption Commission v Tum (Administrator of the Estate of Nathaniel Kipkorir Tum) & another; Board of Management Kitale School Primary & another (Interested Parties) (Environment and Land Case E020 of 2023) [2025] KEELC 7193 (KLR)

Environment and Land Court
15 October 2025
2,367 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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The Environment and Land Court in Kitale refused to pause enforcement of its earlier orders because the applicant offered no real evidence of the loss he claimed.

What this practically means

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Executive summary

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The 1st defendant, Edwin K. Tum, applied by notice of motion dated 10/7/2025, brought under the inherent powers of the court, for a stay of execution or implementation of a ruling and orders issued by the Environment and Land Court at Kitale on 9/7/2025, pending an intended appeal to the Court of Appeal. He contended that a receiver appointed under the orders would dissipate and mismanage the suit premises, causing irreparable loss, ruining his family's reputation, and destroying a 31-year investment comprising rental units, a petrol station, a hotel, go-downs, a supermarket and a borehole. The plaintiff/respondent opposed, arguing that the application was fatally defective for not citing any legal provision, that substantial loss was unsubstantiated, that the receiver is bound by Order 41 to preserve the property, that rent would be deposited into a joint interest-earning account, and that security was not addressed. The court set out the Order 42 Rule 6(1) conditions - sufficient cause, timely filing, substantial loss and security - and applied authorities including Samvir Trustee, Kenya Shell v Kibiru, RWW v EKW and Butt v Rent Restrictions Tribunal. It found no empirical or documentary evidence of substantial loss, rejected the allegations of receiver mismanagement as speculation, held that security is not an irrelevant consideration, and observed that the applicant offered none. The court dismissed the application with costs to the plaintiff.

Key legal issues

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01

Conditions for stay of execution pending appeal

Holding

The applicant failed to meet the Order 42 Rule 6(1) conditions - substantial loss was not evidenced, security was not offered, and no special circumstances showing the appeal would be rendered nugatory were demonstrated

Reasoning

The court applied settled authority requiring sufficient cause, timely application, evidence of substantial loss, and security. The applicant's assertions of dissipation by the receiver, loss of rental income and family reputation were unsupported by valuation reports, financial records or other documentary evidence. The receiver is bound by Order 41 to preserve the property. Security was dismissed by the applicant as irrelevant, which the court rejected.

p. 5
02

Whether failure to cite the statutory basis of the application is fatal

Holding

The court did not strike out the application for failure to cite the law but determined it on the merits under Order 42 Rule 6(1)

Reasoning

The respondent argued the application under inherent powers was fatally defective. The applicant cited authority that failure to cite the law is not fatal. The court proceeded to consider the substantive conditions for stay, implying the defect was not fatal, but dismissed on the merits.

p. 3
03

Purpose of stay of execution

Holding

Stay preserves the subject matter so that neither party suffers prejudice incapable of compensation by damages

Reasoning

Relying on RWW v EKW, the court reiterated that the purpose of stay is to preserve the subject matter in dispute, weighing the rights of both parties so that no party is disadvantaged or prejudiced in a manner not compensable by damages. The applicant failed to show that balance favoured a stay.

p. 4

Legal principles established

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  • Substantial loss must be proved by proper evidential material, not mere assertions or speculation
  • A court may not order stay of execution on vague speculation; the clearest grounds on disclosed evidence are required, and security is a mark of good faith
  • The three conditions under Order 42 of the Civil Procedure Rules must all be satisfied; failure to prove one dislodges the others

Court orders

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  1. 1.The application dated 10/7/2025 seeking stay of execution of the ruling and order issued on 9/7/2025 pending appeal is dismissed
  2. 2.The 1st Defendant/applicant to pay costs of the application

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1)
  • Civil Procedure RulesOrder 41
  • Civil Procedure RulesOrder 42 Rule 3
  • Civil Procedure RulesOrder 51 Rule 4
  • Evidence Act

Cases cited (11)

  • Abraham Mukhola Asitsa -vs- Silver Style Investment Company Ltd
    [2020] KEHC 965 (KLR)
  • Samvir Trustee Ltd -vs- Guardian Bank Ltd
    Nairobi Milimani HCCC No. 795 of 1997
  • Kenya Shell Ltd -vs- Kibiru
    (1986) KLR 410
  • James Wangalwa & Another -vs- Agnes Naliaka Cheseto
    (2012) eKLR
  • National Industrial Credit Bank Ltd -vs- Aquinas Francis Wasike & another
    [2006] KECA 333 (KLR)
  • Focin Motorcycle Co. Ltd -vs- Ann Wambui Wangui & Another
    [2018] eKLR
  • RWW -vs- EKW
    [2019] eKLR
  • Butt -vs- Rent Restrictions Tribunal
    1982 [KLR] 417
  • Thugi River Estates Limited & another -vs- National Bank of Kenya Limited & 2 others
    [2008] eKLR
  • Machira t/a Machira & Co. Advocates -vs- E.A. Standard
    [2002] KEHC 1167 [KLR]
  • Antoine Ndiaye -vs- African Virtual University
    [2015] eKLR
Jurisdiction invoked
Inherent powers of the court; stay of execution pending appeal under Order 42 Rule 6(1) 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, "Ethics and Anti-Corruption Commission v Tum (Administrator of the Estate of Nathaniel Kipkorir Tum) & another; Board of Management Kitale School Primary & another (Interested Parties) (Environment and Land Case E020 of 2023) [2025] KEELC 7193 (KLR)", Case Analysis (2025). Application dated 10/7/2025 in the principal suit (ELC Kitale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7193/eng@2025-10-15

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