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ELCDismissedBusia CMCC NO E056 of 2024 (referenced ruling; application Notice of Motion dated 1st August 2025)· [2025] KEELC 7199 (KLR)

Ali v Ashioya (Environment and Land Miscellaneous Application E009 of 2025) [2025] KEELC 7199 (KLR)

High Court of Kenya
23 October 2025
1,587 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's High Court dismissed Hassan Ali's application, confirming you cannot get a stay of execution without a filed appeal, and courts cannot stay what has already been executed.

What this practically means

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Executive summary

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Hassan Ali moved the High Court at Busia by Notice of Motion dated 1st August 2025, brought under Rule 3 of the High Court Practice and Procedure Rules, Section 3A of the Civil Procedure Act and Order 22 Rules 31 and 35 of the Civil Procedure Rules, seeking lifting or stay of a warrant of arrest issued on or about 24th November 2024 in Busia CMCC NO E056 of 2024 pending hearing of an alleged application dated 7th July 2025 for leave to appeal out of time and stay of execution. The Applicant was aggrieved by the ruling of Hon R. Odenyo SPM delivered on 19th March 2025 requiring him to deposit the decretal sum in a joint interest-earning account as a condition for stay; his appeal was struck out on 4th July 2025 for want of jurisdiction. The Respondent, an Advocate, opposed through grounds of opposition and a replying affidavit, showing that the warrant had been successfully executed and the Applicant had paid Kshs.150,000 and pledged to pay the balance within 30 days. The Court (Boaz N. Olao J) held that no Motion dated 7th July 2025 existed in the proceedings and no leave to appeal had been granted, so there was no appeal on file; Order 42 Rule 6(1) permits stay only in cases of appeal. Further, the warrant had already been executed and was spent, so there was nothing to stay. The Motion was dismissed with costs.

Key legal issues

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01

Whether stay of execution can issue in the absence of a filed appeal

Holding

No. Order 42 Rule 6(1) confines stay of execution to cases of appeal; since leave to appeal out of time had not been granted and no appeal was on file, the Court could not consider stay.

Reasoning

The Court examined Order 42 Rule 6(1) and its marginal note ('stay in case of appeal'). The application for stay presupposed a Motion dated 7th July 2025 seeking leave to appeal out of time, but no such Motion had been filed in these proceedings and no leave had been granted by any court. Without leave there is no appeal, and without an appeal there is no jurisdictional foundation for an order of stay under Order 42 Rule 6(1).

p. 3
02

Whether the already-executed warrant of arrest could be stayed

Holding

No. The warrant had been successfully executed; the Applicant made part payment of Kshs.150,000 and pledged to pay the balance within 30 days, so there was nothing left to stay.

Reasoning

The Respondent averred, unrebuted, that the warrant was executed and the Applicant made part payment and pledged to settle the balance. A stay is only a temporary halt on proceedings; where the process sought to be stayed is spent, any order would be futile. The Court declined to act in vain and treated the relief as incapable of being granted.

p. 3
03

Whether the Motion dated 7th July 2025 (on which the stay was anchored) existed in these proceedings

Holding

No such Motion was on file; the stay prayer was therefore anchored on a non-existent application.

Reasoning

The Court observed that the Motion dated 1st August 2025 sought to preserve the position pending determination of an application dated 7th July 2025 for leave to appeal out of time and stay. Upon review of the record, no such Motion had been filed in these proceedings; the first Motion was that dated 14th July 2025, which was withdrawn. The stay prayer consequently lacked any pending application to which it could attach.

p. 2

Legal principles established

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  • An application for stay of execution under Order 42 Rule 6 can only be founded on an appeal or second appeal; without a filed appeal, no stay can issue
  • Courts cannot stay what has already been executed; a stay is a temporary halt on proceedings and cannot issue in respect of a spent warrant of arrest

Court orders

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  1. 1.The Notice of Motion dated 1st August 2025 is dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSection 3A
  • Civil Procedure RulesOrder 22 Rules 31 and 35
  • Civil Procedure RulesOrder 42 Rule 6(1)
  • High Court Practice and Procedure RulesRule 3
On appeal from
Senior Principal Magistrate's Court, Busia
Busia CMCC NO E056 of 2024
Jurisdiction invoked
Section 3A of the Civil Procedure Act; Rule 3 of the High Court Practice and Procedure Rules; Order 22 Rules 31 and 35 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, "Ali v Ashioya (Environment and Land Miscellaneous Application E009 of 2025) [2025] KEELC 7199 (KLR)", Case Analysis (2025). Busia CMCC NO E056 of 2024 (referenced ruling; application Notice of Motion dated 1st August 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7199/eng@2025-10-23

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