Ali v Ibrahim
The bottom line
#A Kenyan court refused to pause execution of a land judgment because the applicant gave no specific evidence of the loss he would suffer.
What this practically means
#Executive summary
#Key legal issues
#Substantial loss under Order 42 Rule 6(2)
The Applicant failed to demonstrate substantial loss; his affidavit merely reproduced conclusions of irreparable loss and nugatory appeal without particulars or evidence
The Court held that beyond a general assertion that execution would occasion irreparable loss, the Applicant identified no nature of loss, no explanation of irreversible consequences, and no evidential material. Reliance on extracted decree and possible eviction was, without more, insufficient under Machira and Wangalwa.
Unreasonable delay
Filing five days after judgment satisfied the promptitude requirement
The application was filed on 17 June 2025, five days after the impugned judgment. The Court was satisfied it was made without unreasonable delay, though noting the one-year interval before delivery of the ruling was not attributable to the Applicant.
Security for due performance of the decree
It was unnecessary to consider security since failure on substantial loss was dispositive
Because the Order 42 Rule 6(2) conditions are cumulative, failure to establish substantial loss alone disposed of the application, and the Court did not reach the security requirement.
Arguability of the appeal cannot substitute for statutory conditions
An arguable appeal does not dispense with the obligation to demonstrate substantial loss under Order 42 Rule 6(2)
The Court distinguished stay applications under Order 42 Rule 6 from Rule 5(2)(b) Court of Appeal applications, holding that the express statutory conditions of substantial loss, promptitude and security must be met and arguability cannot replace any of them.
Legal principles established
#- The conditions in Order 42 Rule 6(2) for stay of execution are cumulative, not alternative, and must all be satisfied
- Commencement or likelihood of execution does not by itself amount to substantial loss
- A general, unparticularised assertion of substantial loss is insufficient; the loss must be specified and supported by evidence
- The overriding objective cannot be used as a substitute for the statutory conditions for stay of execution
Court orders
#- 1.The Notice of Motion dated 17 June 2025 is dismissed
- 2.The Applicant shall bear the Respondent's costs of the application
- 3.The dismissal of the application does not determine the merits of the pending appeal, which shall be heard and determined in accordance with the applicable law and procedure
- On appeal from
- Principal Magistrate's Court at Garissa
- CMELC Suit No. E021 of 2022
- Jurisdiction invoked
- Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules; sections 3 and 3A of the Civil Procedure Act; section 13(1) of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ali v Ibrahim", Case Analysis (2026). Environment and Land Appeal E008 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5799/eng@2026-09-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.