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ELCDismissedNot stated in the judgment

Etemesi v Kokoyo (Environment and Land Appeal E031 of 2022) [2026] KEELC 3243 (KLR)

Environment and Land Court
20 May 2026
ANA. Nyukuri
781 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~3 min to read original · ~4 min brief

The bottom line

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A Kenyan land court refused to pause eviction because its judgment only dismissed the appeal, leaving no order that could actually be stayed.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kakamega (A. Nyukuri, J) on a notice of motion dated 26th May 2025 in which the applicant, described as the appellant, sought stay of execution of the court's judgment of 30th January 2025 pending an appeal lodged in the Court of Appeal at Kisumu. The applicant asserted that the respondent had served an eviction order dated 20th May 2025 effective 20th June 2025, that his appeal had chances of success, and that refusal would render the appeal nugatory and cause irreparable injury. The respondent opposed, contending that no proof of filing the appeal was provided, that no memorandum and record of appeal had been served within 60 days under Rule 82 of the Court of Appeal Rules, that the court was functus officio, that the five-month delay in making the application was inordinate, and that no security for costs had been deposited. The court framed a single issue: whether the applicant had met the threshold for stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules, which requires substantial loss, absence of unreasonable delay, and security. Applying Tropical Commodities Suppliers Ltd & Others v International Credit Bank Ltd (in liquidation) [2004] 2 EA 331 on the qualitative nature of substantial loss, the court held that its own judgment had dismissed the applicant's appeal with costs and made no positive order capable of being stayed; accordingly, stay was unavailable. The application was dismissed with costs to the respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.whether the applicant has met the threshold for grant of orders of stay of execution pending appeal

Key legal issues

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01

Whether the applicant met the Order 42 Rule 6 threshold for stay of execution pending appeal

Holding

The application failed because the court's judgment dismissed the applicant's appeal and made no positive order capable of being stayed, so stay was unavailable.

Reasoning

The court reproduced Order 42 Rule 6 CPR, which requires substantial loss, absence of unreasonable delay, and security. Relying on Tropical Commodities Suppliers Ltd, it noted substantial loss is qualitative. However, applying the principle that stay lies only against positive orders, it found that its own judgment dismissed the applicant's appeal with costs; hence there was nothing to stay and the application lacked merit.

p. 2

Legal principles established

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  • Stay of execution pending appeal is unavailable where the judgment appealed from dismissed the claim and made no positive order capable of being stayed.
  • Substantial loss is a qualitative, not mathematical, concept covering any loss of real worth or value.

Court orders

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  1. 1.Application dated 26th May 2025 dismissed with costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AN
majority

Wrote the judgment

On appeal from
Court of Appeal, Kisumu
Not stated
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules

Relief refused

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Stay of execution of the judgment delivered on 30th January 2025 pending appeal to the Court of Appeal

The court had dismissed the applicant's appeal and made no positive order capable of being stayed

p. 2

Costs

Application dismissed with costs to the respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

In the premises, I find no merit in the application dated 26th May 2025, which I dismiss with costs to the respondent.
p. 2Final orders - dismissal of stay application
No positive order capable of being stayed was made by this court and therefore an order of stay of execution pending appeal at the Court of Appeal is unavailable for the appellant herein and cannot be granted.
p. 2Unavailability of stay where no positive order exists
Substantial loss does not represent any particular mathematical formula. Rather, it is a qualitative concept.
p. 2Meaning of substantial loss

Issues in the judgment

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minor

Internal date inconsistency: the replying affidavit is sworn on 11th November 2025 and the ruling is dated 20th May 2026, yet the motion is dated 26th May 2025 with eviction said to take effect 20th June 2025; also the judgment describes the applicant as 'appellant' before the Court of Appeal while the decision under challenge was this court's own 'appeal' dismissal.

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, "Etemesi v Kokoyo (Environment and Land Appeal E031 of 2022) [2026] KEELC 3243 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3243/eng@2026-05-20

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.