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ELCDismissedELC Appeal No. E106 of 2025· [2026] KEELC 5371 (KLR)

Ouma v Dave (Environment and Land Appeal E106 of 2025) [2026] KEELC 5371 (KLR)

Environment and Land Court
31 August 2026
3,887 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~16 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The Appellant, Rose Akinyi Ouma, moved the Environment and Land Court at Kisumu by Notice of Motion dated 24th December 2025 seeking stay of execution of a ruling delivered on 16th December 2025 by Hon. L. D. Ogombe (SPM) in Kisumu MCELC No. E074 of 2020, which dismissed her application to set aside an interlocutory judgment entered against her and a final judgment of 22nd September 2022. She filed a Memorandum of Appeal and sought stay pending the appeal, asserting arguability, absence of delay, absence of prejudice and willingness to furnish security. The Respondent opposed, contending that the ruling was a negative order incapable of execution, that no executable decree arose from it, and that the Appellant had failed to demonstrate substantial loss. The court framed three issues: whether the ruling was capable of being stayed; whether the Order 42 Rule 6(2) conditions were met; and costs. It held that Order 42 Rule 6 presupposes an executable decree or order; the impugned ruling merely dismissed the setting-aside application and commanded nothing, making it a negative order incapable of stay, following Western College v Oranga and related authority. The court further noted that the Appellant's real anxiety concerned the 2022 decree, which was not the subject of the appeal and could not be stayed through this application, and that section 3A could not be used to achieve indirectly what the Rules do not permit. The Appellant also failed to demonstrate substantial loss, offered no concrete security, and merely asserted a risk of execution. Although the eight-day delay was not unreasonable, that alone did not avail her. The Motion was dismissed with costs to the Respondent, and the Appellant was directed to file and serve the Record of Appeal within thirty days. The court gave no opinion on the merits of the appeal.

Key legal issues

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01

Whether the ruling of 16th December 2025 dismissing the setting-aside application is an order capable of being stayed

Holding

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

Reasoning

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.

p. 6
02

Whether the conditions under Order 42 Rule 6(2) were satisfied

Holding

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

Reasoning

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.

p. 7
03

Costs of the application

Holding

Costs awarded to the Respondent; they should not abide the appeal

Reasoning

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.

p. 7

Legal principles established

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  • 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

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  1. 1.The Notice of Motion dated 24th December 2025 is dismissed
  2. 2.The costs of the application are awarded to the Respondent
  3. 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

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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, "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.