Opere v Nyakwama & another (Environment and Land Appeal E023 of 2024) [2026] KEELC 5366 (KLR)
The bottom line
#Kenya's High Court refused to stay a judgment that merely dismissed an appeal, confirming you cannot stay execution of a negative order.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the judgment and decree of 8th June, 2026 is capable of being stayed
- 2.If so, whether the applicant has satisfied the conditions prescribed by Order 42 Rule 6(2) of the Civil Procedure Rules
- 3.What orders should issue, and who should bear the costs
Key legal issues
#Whether a negative order (dismissal) is capable of stay of execution
It is not; only costs are executable and those require taxation and a formal application
The jurisdiction to stay presupposes an executable decree. The judgment merely dismissed the appeal; it ordered no party to do or refrain from anything or pay any sum save costs. Whatever positive relief exists lies in the subordinate court's decree, not this court's judgment, and the applicant failed to annex any decree showing what was under threat of execution.
Whether Order 42 Rule 6(2) conditions were satisfied
No; substantial loss was not proved although the application was timeous and security would have presented no difficulty
The applicant's case rose no higher than apprehension that the 1st Respondent desired to execute; mere execution is a lawful process and does not amount to substantial loss. Reference to building materials was unparticularised and undocumented. Advanced age and illness do not constitute substantial loss. The conditions are conjunctive, so failure on substantial loss was fatal.
Legal principles established
#- A dismissal is a negative order; there is nothing capable of execution save in respect of costs, so stay of execution does not lie
- The three conditions in Order 42 Rule 6(2) are conjunctive; failure of one is fatal
- Substantial loss must be proved, not merely asserted; apprehension of execution is not loss
Court orders
#- 1.The Notice of Motion dated 19th June, 2026 is dismissed
- 2.Each party shall bear its own costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Subordinate court (not named)
- Not stated
- Jurisdiction invoked
- Sections 1A, 1B and 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules, 2010
Relief refused
#Stay of execution of the judgment and/or decree of 8th June 2026 pending the intended appeal
A dismissal is a negative order incapable of execution save as to costs; and the conjunctive conditions of Order 42 Rule 6(2), especially substantial loss, were not established
Costs of the application abiding the appeal
Court exercised discretion for each party to bear own costs
Costs
Each party shall bear its own costs of the application.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The upshot of the foregoing is that the Notice of Motion dated 19th June, 2026 is devoid of merit. Itis hereby dismissed.
Each party shall bear its own costs of the application.
A dismissal of a suit, claim, matter or application is, in the settled language of our jurisprudence, a negative order.
Substantial loss is a matter to be proved, not merely asserted.
Whether the intended appeal is arguable, and whether it would be rendered nugatory, are the twin considerations governing the discretion of the Court of Appeal under Rule 5(2)(b) of the Court of Appeal (Organization and Administration) Rules. They are not the test prescribed by Order 42 Rule 6(2) for this court.
Issues in the judgment
#The court records the applicant's gender inconsistently, referring to the Applicant as 'he' but also as 'she'
Typographical errors in the judgment text (e.g. 'determina', 'Itis hereby dismissed')
The court is not expressly identified in the excerpt; the judgment refers only to 'this Court' hearing an appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Opere v Nyakwama & another (Environment and Land Appeal E023 of 2024) [2026] KEELC 5366 (KLR)", Case Analysis (2026). Not stated in the excerpt (appeal from subordinate court decided 8th June 2026). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5366/eng@2026-08-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.