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ELCDismissedELC Appeal (Notice of Motion dated 10th June 2026) arising from Nairobi Milimani Chief Magistrate's Court MCELC Case No. E430 of 2025

Osman v Osman & 3 others (Environment and Land Appeal E118 of 2026) [2026] KEELC 5318 (KLR)

Environment and Land Court
14 August 2026
3,810 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~15 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused to halt a landlord-tenant case on appeal because the applicant showed no real loss and jumped the gun before the trial court finished ruling.

What this practically means

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Executive summary

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This was a ruling by the Environment and Land Court (delivered virtually at Voi on 14th August 2026 by J. A. Orwa, J) on a Notice of Motion dated 10th June 2026 by Mohamed Abdullahi Osman, the Appellant/Applicant in an appeal from Nairobi Milimani Chief Magistrate's Court MCELC Case No. E430 of 2025. He sought stay of execution of an exparte order issued on 5th June 2026 (which had temporarily stayed a consent order of 4th March 2026 preserving his occupation of Tinga House, Dubois Road, Nairobi, LR No. 209/5525/21), a temporary prohibitory injunction, and a stay of further proceedings before the trial Magistrate pending the appeal. The 1st Respondent opposed, contending the application was premature, an abuse of process, and that the impugned order was negative and incapable of being stayed, with no substantial loss demonstrated. The court framed five issues. It held that stay of proceedings is a radical remedy granted only in exceptional circumstances and found none established; that no substantial loss was shown since the Applicant remained in occupation and no eviction process under Sections 152A-F of the Land Act had commenced; and that the application was prematurely filed and an abuse of due process given the pendency of applications dated 6th February 2026 and 4th June 2026 before the trial court. The Notice of Motion dated 10th June 2026 was dismissed, with each party bearing its own costs in view of the parties' contractual relationship.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant has established special circumstance(s) for granting stay of proceedings pending hearing and determination of appeal
  2. 2.Whether the Applicant has established grounds for granting stay of execution pending appeal
  3. 3.Whether the applicant's application is prematurely filed before court
  4. 4.Whether the application is an abuse of court process
  5. 5.Who to bear the costs of the application

Key legal issues

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01

Stay of proceedings pending appeal

Holding

Refused - no special circumstances established

Reasoning

The court framed stay of proceedings as a radical remedy available only in very exceptional circumstances. The Applicant himself admitted the subject matter in the Magistrates' Court and the appeal were the same, and the trial Magistrate had not yet ruled on the application dated 4.6.2026 that would determine the fate of the impugned order of 5.6.2026. Restraining the trial court from concluding its proceedings would deny the parties access to justice and a fair hearing under Articles 159 and 50 of the Constitution.

p. 9
02

Stay of execution pending appeal under Order 42 Rule 6

Holding

Refused - no substantial loss or risk of the appeal being rendered nugatory

Reasoning

The Applicant relied on a 3-day notice to vacate arising from the exparte stay order of 5.6.2026, but the 1st Respondent denied issuing any eviction, the Applicant remained in occupation, and no eviction process under Sections 152A-F of the Land Act had been commenced. Following James Wangalwa and Stanley Kangethe Kinyanjui, the court found nothing irreversible that would render the appeal nugatory.

p. 10
03

Prematurity and abuse of court process

Holding

Application found premature and an abuse of due process

Reasoning

The applications dated 6.2.2026 and 4.6.2026 were still pending before the trial Magistrate. Invoking the court's inherent discretion to restrain the trial Magistrate from delivering a ruling on the application dated 4.6.2026 would interfere with the trial court's core mandate; the Applicant was effectively seeking indirectly to revive the consent order of 4.3.2026.

p. 10
04

Costs

Holding

Each party to bear own costs despite the general rule that costs follow the event

Reasoning

The court acknowledged the Supreme Court's pronouncement in Rai v Rai that costs follow the event, but exercised its discretion in light of the ongoing contractual/tenancy relationship between the Applicant and the 1st Respondent to order that each party bear its own costs.

p. 11

Legal principles established

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  • Stay of proceedings is a radical remedy granted only in exceptional circumstances upon proof of special circumstances
  • Substantial loss is the cornerstone for grant of stay of execution pending appeal
  • Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible or compensable by damages
  • Costs follow the event but the court retains discretion; on the contractual relations between the parties each party was left to bear its own costs

Court orders

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  1. 1.The Application dated 10.6.2026 is dismissed
  2. 2.Each party to bear own costs of the Application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

On appeal from
Chief Magistrate's Court, Nairobi Milimani
MCELC Case No. E430 of 2025
Jurisdiction invoked
Sections 1A, 1B, 3A, 63(e) and 79G of the Civil Procedure Act, Cap. 21; Order 42 Rule 6, Order 40 Rules 1, 2 and 4, Order 43 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Sections 3, 13 and 19 of the Environment and Land Court Act (the Applicant lodged an appeal from the Magistrates' Court and sought interim preservation)

Relief refused

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Stay of execution/implementation of the exparte order issued 5th June 2026 pending the appeal

No substantial loss demonstrated; the impugned order was negative in effect and no eviction process had been commenced under the Land Act

p. 10

Temporary prohibitory injunction restraining interference with the suit premises

Eviction procedure under Sections 152A-F of the Land Act not exhausted; no irreparable injury shown

p. 9

Stay of proceedings in MCELC E430 of 2025 pending the appeal

No special circumstances established; the trial court had not yet determined the application dated 4.6.2026

p. 9

Costs

Each party to bear own costs of the Application

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

a) The Application dated 10.6.2026 is dismissed with each party to bear own costs of Application.
p. 11Final orders/disposition
It is trite that stay of proceedings is a radical remedy which is granted in very exceptional circumstances
p. 8Stay of proceedings - exceptional circumstances
no substantial loss has been established by the Applicant to warrant granting stay of execution pending hearing and determination of the Appeal
p. 10Stay of execution - substantial loss
In the circumstances I find the application dated 10.6.2026 as prematurely placed before this court for hearing and determination hence an abuse of due process of the court
p. 10Prematurity and abuse of process
“The issue of substantial loss is the cornerstone of both jurisdictions. substantial loss is what has to be prevented by preserving the status quo because such loss would render the appeal nugatory.”
p. 10Substantial loss as cornerstone of stay (quoting James Wangalwa)
“Whether an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversable or if it is not reversable damages will be reasonable compensation to the aggrieved party”
p. 10Nugatory appeal test (quoting Stanley Kangethe Kinyanjui v Tony Ketter)

Issues in the judgment

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minor

The judgment repeatedly misspells the trial court case number ('mcelce430', 'milimanimcelce430', 'mcelcE430') and the applicant's names appear with mixed Cyrillic/erroneous characters ('Mohаmed'), indicating transcription errors

minor

The pleading and analysis refer to the Applicant variously as 'Appellant/Applicant' and the notice of motion as brought 'pending the hearing and determination of this Appeal', but no formal appeal number is given anywhere in the judgment

minor

The judgment refers to 'noble rival Submissions' - an apparent typographical error for 'rival submissions'

minor

Case citation for RWW v EKW appears as '[2019] КЕНС 6523 (KLR)' with non-standard characters (КЕНС), likely a rendering error for 'eKLR' or 'KEHC'

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, "Osman v Osman & 3 others (Environment and Land Appeal E118 of 2026) [2026] KEELC 5318 (KLR)", Case Analysis (2026). ELC Appeal (Notice of Motion dated 10th June 2026) arising from Nairobi Milimani Chief Magistrate's Court MCELC Case No. E430 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5318/eng@2026-08-14

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