Ombe & another (Suing as Administrator of the Estate of Stephen Abur Ombe (Deceased)) v Sule (Sued in his Capacity as the Administrator of the Estate of Richard Sule Awili (Deceased)) (Enviromental and Land Originating Summons E007 of 2023) [2025] KEELC 4844 (KLR)
The bottom line
#A Kenyan court cannot order a stay of execution against a judgment that simply dismissed the plaintiff's case, because there is nothing in it to enforce.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether stay of execution can be granted in respect of a judgment that merely dismissed the suit with costs (a negative order)
- 2.Whether steps towards eviction by the Respondent constitute execution of the judgment
- 3.Whether the application for stay of execution pending appeal has merit
Key legal issues
#Whether stay of execution lies over a negative order
No. A judgment that merely dismisses a suit with costs is a negative order with nothing to execute or stay, save possibly costs
The court perused its own judgment of 7th November 2024 and confirmed it only dismissed the Applicants' suit with costs; no eviction or other mandatory order was made. Relying on Western College v Oranga and David Kipruto Chingi, the court held there is nothing arising from the judgment to enforce or restrain, so a stay application in respect of it must fail.
Whether threatened eviction by the Respondent amounts to execution of the judgment
It does not; eviction steps taken without an eviction order in the judgment are not execution of that judgment
The Applicants' grievance was that the Respondent was moving to evict them pending appeal. The court found that since the judgment contained no eviction order, any eviction steps could not be execution of the judgment and therefore fell outside the scope of Order 42 Rule 6 stay.
Legal principles established
#- An order of stay of execution cannot be granted in respect of a negative order (a judgment merely dismissing a suit with costs)
- Steps taken towards eviction following a dismissal without an eviction order are not execution of the judgment
Court orders
#- 1.The Notice of Motion dated 28th March 2025 seeking stay of execution is dismissed
- 2.Costs to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 42 Rule 6 Civil Procedure Rules 2010 and sections 1A and 3B of the Civil Procedure Act
Relief refused
#Temporary stay of execution of the judgment delivered on 7th November 2024 pending appeal
The judgment was a negative order dismissing the suit with costs; no eviction order was issued and nothing arises from it to stay
Costs
Costs to the Respondent.
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 judgement only dismissed the Applicants' suit with costs to the Respondent. No eviction order was given in the judgement.
The High Court has not ordered any of the parties to do anything or to refrain from doing anything or to pay any sum. There is nothing arising out of the High Court Judgment for this court in an application for stay to enforce or restrain by injunction.
the court finds that the application lacks merit and hereby dismisses it. Costs to the Respondent.
an application seeking stay of execution of a negative order was bound to fail and proceeded to dismiss the application.
Issues in the judgment
#The Respondent is not named in the judgment body or on record in the extract provided
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ombe & another (Suing as Administrator of the Estate of Stephen Abur Ombe (Deceased)) v Sule (Sued in his Capacity as the Administrator of the Estate of Richard Sule Awili (Deceased)) (Enviromental and Land Originating Summons E007 of 2023) [2025] KEELC 4844 (KLR)", Case Analysis (2025). ELC E007/2023 (OS). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4844/eng@2025-06-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.