Osman v Osman & 3 others (Environment and Land Appeal E118 of 2026) [2026] KEELC 5318 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to halt a landlord-tenant case on appeal because the applicant showed no real loss and jumped the gun before the trial court finished ruling.
What this practically means
#Executive summary
#Key legal issues
#Stay of proceedings pending appeal
Refused - no special circumstances established
The court framed stay of proceedings as a radical remedy available only in very exceptional circumstances. The Applicant himself admitted the subject matter in the Magistrates' Court and the appeal were the same, and the trial Magistrate had not yet ruled on the application dated 4.6.2026 that would determine the fate of the impugned order of 5.6.2026. Restraining the trial court from concluding its proceedings would deny the parties access to justice and a fair hearing under Articles 159 and 50 of the Constitution.
Stay of execution pending appeal under Order 42 Rule 6
Refused - no substantial loss or risk of the appeal being rendered nugatory
The Applicant relied on a 3-day notice to vacate arising from the exparte stay order of 5.6.2026, but the 1st Respondent denied issuing any eviction, the Applicant remained in occupation, and no eviction process under Sections 152A-F of the Land Act had been commenced. Following James Wangalwa and Stanley Kangethe Kinyanjui, the court found nothing irreversible that would render the appeal nugatory.
Prematurity and abuse of court process
Application found premature and an abuse of due process
The applications dated 6.2.2026 and 4.6.2026 were still pending before the trial Magistrate. Invoking the court's inherent discretion to restrain the trial Magistrate from delivering a ruling on the application dated 4.6.2026 would interfere with the trial court's core mandate; the Applicant was effectively seeking indirectly to revive the consent order of 4.3.2026.
Costs
Each party to bear own costs despite the general rule that costs follow the event
The court acknowledged the Supreme Court's pronouncement in Rai v Rai that costs follow the event, but exercised its discretion in light of the ongoing contractual/tenancy relationship between the Applicant and the 1st Respondent to order that each party bear its own costs.
Legal principles established
#- Stay of proceedings is a radical remedy granted only in exceptional circumstances upon proof of special circumstances
- Substantial loss is the cornerstone for grant of stay of execution pending appeal
- Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible or compensable by damages
- Costs follow the event but the court retains discretion; on the contractual relations between the parties each party was left to bear its own costs
Court orders
#- 1.The Application dated 10.6.2026 is dismissed
- 2.Each party to bear own costs of the Application
- On appeal from
- Chief Magistrate's Court, Nairobi Milimani
- MCELC Case No. E430 of 2025
- Jurisdiction invoked
- Sections 1A, 1B, 3A, 63(e) and 79G of the Civil Procedure Act, Cap. 21; Order 42 Rule 6, Order 40 Rules 1, 2 and 4, Order 43 and Order 51 Rule 1 of the Civil Procedure Rules, 2010; Sections 3, 13 and 19 of the Environment and Land Court Act (the Applicant lodged an appeal from the Magistrates' Court and sought interim preservation)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Osman v Osman & 3 others (Environment and Land Appeal E118 of 2026) [2026] KEELC 5318 (KLR)", Case Analysis (2026). ELC Appeal (Notice of Motion dated 10th June 2026) arising from Nairobi Milimani Chief Magistrate's Court MCELC Case No. E430 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5318/eng@2026-08-14
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.