Burke (Suing as the legal representative of the Estate of Lucy Wanjiku Owen Burke) v Butuba & 2 others (Land Case Appeal E155 of 2025) [2026] KEELC 4434 (KLR)
The bottom line
#The High Court dismissed a Kenyan applicant's stay of execution because he proved neither substantial loss nor offered security for the decree.
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 application for stay of execution pending appeal is merited
Key legal issues
#Whether the orders sought to be stayed are negative orders incapable of stay
Although the judgment dismissing the suit was a negative order, the extracted decree for taxed costs of Ksh 89,900 is an executable monetary order capable of being stayed.
The court acknowledged the principle that stay cannot issue against negative orders, as in Western College v Oranga. However, it distinguished the present case because following taxation, a decree for costs of Ksh 89,900 was extracted on 27th January 2026. That decree compels payment and is therefore an actionable order against which execution can be restrained, so the negative-order objection failed.
Whether the Applicant established substantial loss
The Applicant failed to establish substantial loss, having merely alluded in submissions without demonstrating that the Respondent could not reimburse the decretal sum if the appeal succeeded.
Applying Kenya Shell v Kibiru, the court held that it is insufficient to merely assert that the decretal sum is substantial. The Applicant had to show what loss would be suffered and that reimbursement would be impossible if the appeal succeeded. The Respondent's inability to pay was asserted only in submissions, not established by evidence, so the first condition failed.
Whether the Applicant offered security for due performance of the decree
The second condition of security was not met; security is a matter for the Court to determine, not the Applicant's willingness.
The court reasoned that Order 42 Rule 6 requires security as the court orders, and that this requirement exists to prevent litigants from using vexatious or frivolous appeals to delay execution of decrees. Having failed both the substantial loss and security conditions, the timeliness issue became academic, and the application was dismissed.
Legal principles established
#- An appeal does not operate as a stay; an applicant for stay must show absence of undue delay, substantial loss, and provide security.
- While a dismissal of a suit is a negative order incapable of stay, a decree for ascertained costs is a monetary, executable order capable of being stayed.
- Security for due performance of a decree is for the Court to determine, not a matter of the Applicant's willingness, and the provision guards against frivolous appeals delaying execution.
Court orders
#- 1.The Application dated 28th January 2026 is hereby dismissed for want of merit.
- 2.Costs to the 1st Respondent.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Milimani Commercial Courts (MC ELC E037 OF 2023)
- MC ELC E037 OF 2023
- Jurisdiction invoked
- Order 42 Rule 6(1) and (2) and Order 22 Rule 22 of the Civil Procedure Rules
Relief refused
#Stay of execution against the defendant's decree and certificate of stated costs in MC ELC E037 OF 2023 pending hearing and determination of the application
The Applicant failed to establish substantial loss and to give security for due performance of the decree
Costs
Costs to the 1st 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 Application dated 28th January 2026 is hereby dismissed for want of merit.
It is trite that stay of execution cannot be ordered against negative Orders but in this case, there is an order for payment hence an action that can be refrained
the court to which such appeal is preferred shall be at liberty, on application being made, to consider such application and to make such order thereon as may to it seem just
This provision is to ensure that Courts do not assist litigants to delay execution of decrees through filing vexatious and frivolous appeals.
Issues in the judgment
#The judgment states the application was premised on a supporting affidavit but inconsistently describes the dismissal of the suit as a 'negative order' incapable of stay while simultaneously holding an executable decree exists - the court resolves this internally but the reasoning on the first condition overlaps with this threshold issue.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Burke (Suing as the legal representative of the Estate of Lucy Wanjiku Owen Burke) v Butuba & 2 others (Land Case Appeal E155 of 2025) [2026] KEELC 4434 (KLR)", Case Analysis (2026). Notice of motion dated 28th January 2026 (Memorandum of Appeal against judgment in MC ELC E037 OF 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4434/eng@2026-07-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.