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ELCDismissedNotice of Motion dated 27th October, 2025 arising from ELC Land Appeal No. E001 of 2024 (application case number not stated in the judgment)· [2026] KEELC 1441 (KLR)

Digoi v Seurei (Environment and Land Appeal E001 of 2024) [2026] KEELC 1441 (KLR)

Environment and Land Court
12 March 2026
CYC. K. Yano
2,215 words in judgment
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The bottom line

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An Eldoret court refused to freeze a land judgment because the applicant waited over five months, showed no real loss, and the property had already been sold.

What this practically means

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Executive summary

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The Respondent/Applicant, Augustine Kimeli Seurei, moved the Environment and Land Court at Eldoret by Notice of Motion dated 27th October, 2025 seeking a temporary stay of execution of the judgment and decree delivered on 15th May, 2025 in ELC Land Appeal No. E001 of 2024, by which this court struck out his suit in the trial (Magistrate's) court with costs, together with orders preserving the suit property, L.R No. Uasin Gishu/Kipkabus Settlement Scheme/412, pending an intended appeal to the Court of Appeal. The respondent opposed, arguing the application was incompetent, anchored on an unserved and out-of-time notice of appeal, directed at a negative order incapable of execution, brought after inordinate and unexplained delay, and overtaken by events since the suit land had allegedly been sold to one Moses Mwangi on 12th June, 2025. The application was canvassed by written submissions. Applying Order 42 Rule 6 of the Civil Procedure Rules, the court identified the prerequisites of timely application, substantial loss and security. It found the application filed over 5 months after judgment, with inordinate and unexplained delay; that the judgment striking out the suit was a negative order incapable of execution save for costs; and that the alleged sale of the property meant the application had been overtaken by events, courts not issuing orders in vain. The Notice of Motion was dismissed with costs to the respondent.

Key legal issues

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01

Whether the applicant satisfied the three prerequisites under Order 42 Rule 6 of the Civil Procedure Rules

Holding

The applicant failed to satisfy the prerequisites: the application was brought after over 5 months of inordinate and unexplained delay, substantial loss was not established, and the judgment was a negative order incapable of execution

Reasoning

The court set out the three Order 42 Rule 6 prerequisites: timely application, substantial loss, and security. Judgment was delivered on 15th May, 2025 and the application filed on 27th October, 2025, a delay of over 5 months which the court found inordinate and unexplained. The judgment had merely struck out the applicant's suit in the Magistrate's Court without ordering any party to do or refrain from anything, making it a negative order incapable of execution. The respondent's evidence that the suit property had already been sold to a third party on 12.06.2025 meant the application was overtaken by events, and courts do not issue orders in vain.

p. 4
02

Whether substantial loss would result if stay was not granted, given the alleged sale of the suit property

Holding

No substantial loss was demonstrated; the respondent had exhibited a sale agreement showing the property was sold to one Moses Mwangi on 12.06.2025, so the application had been overtaken by events

Reasoning

The applicant claimed he would suffer substantial loss because the respondent might sell the suit land. The respondent, however, deponed and exhibited a sale agreement showing the property had already been sold to Moses Mwangi on 12th June, 2025. The court accepted that if the property had already been sold, the application was overtaken by events, and endorsed the respondent's submission that courts do not issue orders in vain. Substantial loss is the cornerstone of the jurisdiction to grant stay, and none was substantiated.

p. 4

Legal principles established

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  • Stay of execution pending appeal is discretionary but must be exercised judiciously and upon defined principles of law, and is granted only where sufficient cause is shown
  • A negative order - one that does not command or forbid any act - is incapable of execution and there is nothing to stay

Court orders

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  1. 1.The Notice of Motion application dated 27.10.2025 is dismissed with costs to the respondent

Authorities

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Legislation

  • Civil Procedure ActSection 95
  • Civil Procedure RulesOrder 42 Rule 6 (and 6(2))
  • Court of Appeal Rules, 2022Rules 42(1), 75, 82(1) and (2), 83 and 84

Cases cited (6)

  • Makicher General Construction Company Ltd –vs- Communication Graphics Ltd
    (2021) eKLR
  • R.W.W. –vs- E.K.W
    (2019) eKLR
  • Mabel Kibore –Vs- National Oil Corporation of Kenya Ltd
    (2019) eKLR
  • Jennifier Akinyi Osodo –vs- Boniface Okumu Osodo & 3 others
    (2021) eKLR
  • Kenya Shell Ltd –Vs- Benjamin Karuga Kibiru & Another
    (1986) KLR 410
  • Absalom Dora –Vs- Turbo Transporters
    (2013) eKLR
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending intended appeal to the Court of Appeal)

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, "Digoi v Seurei (Environment and Land Appeal E001 of 2024) [2026] KEELC 1441 (KLR)", Case Analysis (2026). Notice of Motion dated 27th October, 2025 arising from ELC Land Appeal No. E001 of 2024 (application case number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/1441/eng@2026-03-12

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