Oure v Ochanjo & 2 others (Environment and Land Case E079 of 2025) [2025] KEELC 6898 (KLR)
The bottom line
#A Kenyan court refused to pause execution of a judgment dismissing a land suit, confirming that dismissal orders cannot be stayed because there is nothing to execute.
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 Applicant demonstrated substantial loss to justify stay of execution pending appeal
- 2.Whether the application was brought without unreasonable delay
- 3.Whether security for due performance of the decree had been or should be given
- 4.Whether a temporary injunction should issue pending appeal
Key legal issues
#Whether the conditions for stay of execution under Order 42 Rule 6(2) were met
The application failed: although filed without unreasonable delay, substantial loss was not demonstrated and no security was addressed; the trial court's order was a negative order incapable of execution.
The court restated the three conditions in Order 42 Rule 6(2): substantial loss, application without unreasonable delay, and security for due performance. The application was timely, but the Applicant did not demonstrate substantial loss, the core consideration. The trial court had dismissed the suit, a negative order incapable of execution, so there was no legitimate basis for stay. The application was dismissed with costs to the Respondents.
Whether the temporary injunction prayer was still viable
The injunction prayer was abandoned in submissions and in any event overtaken by events since the Applicant had been evicted from the suit land as far back as 10th February, 2023.
Counsel for the Applicant confirmed the Applicant was no longer in occupation and confined the application to stay of execution of costs. The Respondents' evidence showed the Applicant had been evicted by Victoria Blue Services Auctioneers and the 2nd Respondent had taken possession, rendering the injunction moot.
Legal principles established
#- A dismissal of a suit is a negative order incapable of execution, so stay of execution does not lie in respect of it
- Substantial loss is the core consideration in an application for stay of execution under Order 42 Rule 6(2)
Court orders
#- 1.The Notice of Motion dated 15th August, 2025 is dismissed
- 2.Costs to the Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Senior Resident Magistrate's Court (TAMU)
- TAMU MC ELC NO. E003 of 2023
- Jurisdiction invoked
- Order 42 Rule 6(2) of the Civil Procedure Rules (stay of execution pending appeal)
Relief refused
#Stay of execution of the judgment of Hon. Amos Kiprop Makoross – SRM delivered 4th August, 2025 and the decree thereof
Grounds for stay under Order 42 Rule 6(2) were not demonstrated; the trial judgment was a negative order incapable of execution and no substantial loss was shown
Temporary injunction restraining the Respondents from interfering with parcel Kisumu/Koru/1018
The prayer was abandoned in the Applicant's submissions and was overtaken by events as the Applicant had long been evicted from the suit land
Costs
Costs to the Respondents
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 grounds for grant of an order of stay of execution as provided in Order 42 Rule 6(2) of the Civil Procedure Rules are that the Applicant must demonstrate to the satisfaction of the court that substantial loss may result to him/her unless the order of stay of execution is made.
The order made in the judgement of the trial court was a dismissal of the suit hence a negative order and incapable of execution.
The court finds that the grounds for granting an order of stay of execution have not been demonstrated. The application is not merited and is hereby dismissed. Costs to the Respondents. Orders accordingly.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Oure v Ochanjo & 2 others (Environment and Land Case E079 of 2025) [2025] KEELC 6898 (KLR)", Case Analysis (2025). TAMU ELC Appeal in respect of Kisumu MC ELC No. E003 of 2023 (Notice of Motion dated 15th August, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6898/eng@2025-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.