Isiye v Kennedy & another (Environment and Land Appeal E075 of 2024) [2025] KEELC 4855 (KLR)
The bottom line
#A Kenyan court dismissed a landowner's bid to stop auction of his land because he never attached the actual court order he wanted stayed.
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 appeal before court is incompetent for want of leave to appeal out of time
- 2.Whether the appellant has met the threshold for grant of stay of execution pending appeal
Key legal issues
#Whether the appeal was incompetent for want of leave to appeal
The preliminary objection failed because neither party attached the ruling or order appealed against, so the court could not determine whether leave was required.
Order 43 of the Civil Procedure Rules distinguishes appeals lying as of right from those requiring leave, including in respect of Order 22 execution orders. The court noted that the parties did not attach the ruling of 23rd October 2024, so it could not establish the legal basis of the order or whether leave was necessary. The burden of demonstrating incompetence was on the 1st respondent and it was not discharged.
Whether stay of execution pending appeal should be granted
The application was dismissed because the appellant did not attach the order he sought to stay, making it impossible to assess the application.
Under Order 42 Rule 6, an applicant must show substantial loss, that the application was made without unreasonable delay, and willingness to provide security. Applying Butt v Rent Restriction Tribunal, the court found the appellant's affidavit referred to the order of 23rd October 2024 without attaching it, while the motion sought stay of a different order of 15th November 2024, also not attached. The court therefore could not appreciate the basis of the application and dismissed it with costs.
Legal principles established
#- Imminent execution in itself is not a basis for stay; the applicant must demonstrate substantial loss, absence of unreasonable delay and willingness to furnish security.
- Not every court order is capable of being stayed; the order sought to be stayed must be placed before the court.
Court orders
#- 1.The application dated 6th May 2025 is dismissed
- 2.Costs of the application to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Butali Magistrates' Court (MC ELC 45 of 2019)
- Butali MC ELC 45 of 2019
- Jurisdiction invoked
- Appellate jurisdiction under Order 42 and Order 43 of the Civil Procedure Rules (appeal from magistrates' court; Order 42 Rule 6 stay of execution pending appeal)
Relief refused
#Stay of execution of the order dated 15th November 2024 pending hearing of the appeal
The appellant failed to attach the order sought to be stayed, so the court could not appreciate the basis of the application
Costs
Application dismissed with 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.
Essentially, imminent execution in itself cannot be a basis for grant of stay of execution pending appeal, as execution is a lawful process that follows grant of an order, judgment or decree by a court.
Not every order issued by court is capable of, and or should be stayed. In the absence of the order sought to be stayed, this court cannot appreciate the basis of the appellant’s application.
For those reasons, I find no merit in the application dated 6th May 2025 which I hereby dismiss with costs to the respondent.
The power of the court to grant or refuse an application for a stay of execution is discretionary; and the discretion should be exercised in such a way as not to prevent an appeal.
Issues in the judgment
#The judgment refers to 'the appellant' where the 1st respondent/decree-holder appears intended, creating apparent internal contradiction in the narration of the decree.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Isiye v Kennedy & another (Environment and Land Appeal E075 of 2024) [2025] KEELC 4855 (KLR)", Case Analysis (2025). Not stated in the extract (appeal against ruling of 23rd October 2024 in Butali MC ELC 45 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4855/eng@2025-06-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.