Ouma v Dave (Environment and Land Appeal E106 of 2025) [2026] KEELC 5371 (KLR)
The bottom line
#The Environment and Land Court refused to pause the case because a ruling that dismisses your own application cannot be 'executed' or paused in the first place.
What this practically means
#Executive summary
#Key legal issues
#Whether the ruling of 16th December 2025 dismissing the setting-aside application is an order capable of being stayed
It is a negative order, incapable of execution and incapable of being stayed; the only executable consequence is costs, which are not yet taxed and are recoverable if the appeal succeeds
Order 42 Rule 6 is directed at execution of the decree or order appealed from and presupposes an executable order. The impugned ruling merely dismissed the Appellant's application and left the parties where they stood, following the Western College line of authority. The Appellant's real apprehension related to the 2022 decree, which is not the subject of the appeal and cannot be suspended through this application; section 3A cannot be used to achieve indirectly what the Rules do not permit.
Whether the conditions under Order 42 Rule 6(2) were satisfied
They were not. Substantial loss was not demonstrated; delay of eight days was not unreasonable but does not avail; only a generalised willingness to furnish security was expressed
The conditions are conjunctive, and substantial loss is the cornerstone. The supporting affidavit merely asserted a risk of execution without indicating what was to be executed, its value, or any execution step taken. Delay of eight days satisfied that limb. Security was only a general profession of willingness. Arguability of the appeal and nugatory-ness are rule 5(2)(b) considerations, not Order 42 Rule 6(2) tests.
Costs of the application
Costs awarded to the Respondent; they should not abide the appeal
Section 27(1) gives a judicial discretion, costs generally following the event. The Respondent did not invite the application, was put to expense, and succeeded on grounds independent of the merits of the appeal, so she need not await the appeal's outcome to be compensated.
Legal principles established
#- Stay of execution under Order 42 Rule 6 presupposes a decree or order capable of execution; a negative order dismissing an application cannot be stayed
- The ELC's appellate power to stay is confined to the decree or order appealed from
- Substantial loss must be demonstrated, not merely asserted, and is the cornerstone of the stay jurisdiction
Court orders
#- 1.The Notice of Motion dated 24th December 2025 is dismissed
- 2.The costs of the application are awarded to the Respondent
- 3.The Appellant shall, within thirty (30) days of the date hereof, file and serve the Record of Appeal
- On appeal from
- Magistrates' Court (Environment and Land), Kisumu
- Kisumu MCELC No. E074 of 2020
- Jurisdiction invoked
- Appellate jurisdiction of the Environment and Land Court over appeals from subordinate courts in environment and land matters; stay of execution under Order 42 Rule 6 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ouma v Dave (Environment and Land Appeal E106 of 2025) [2026] KEELC 5371 (KLR)", Case Analysis (2026). ELC Appeal No. E106 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5371/eng@2026-08-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.