Ouma v Dave (Environment and Land Appeal E106 of 2025) [2026] KEELC 5371 (KLR)
The bottom line
#The Environment and Land Court refused to pause the case because a ruling that dismisses your own application cannot be 'executed' or paused in the first place.
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 ruling of 16th December 2025 is an order capable of being stayed
- 2.If so, whether the Appellant has satisfied the conditions for the grant of stay of execution under Order 42 Rule 6(2) of the Civil Procedure Rules, 2010
- 3.Who should bear the costs of the application
Key legal issues
#Whether the ruling of 16th December 2025 dismissing the setting-aside application is an order capable of being stayed
It is a negative order, incapable of execution and incapable of being stayed; the only executable consequence is costs, which are not yet taxed and are recoverable if the appeal succeeds
Order 42 Rule 6 is directed at execution of the decree or order appealed from and presupposes an executable order. The impugned ruling merely dismissed the Appellant's application and left the parties where they stood, following the Western College line of authority. The Appellant's real apprehension related to the 2022 decree, which is not the subject of the appeal and cannot be suspended through this application; section 3A cannot be used to achieve indirectly what the Rules do not permit.
Whether the conditions under Order 42 Rule 6(2) were satisfied
They were not. Substantial loss was not demonstrated; delay of eight days was not unreasonable but does not avail; only a generalised willingness to furnish security was expressed
The conditions are conjunctive, and substantial loss is the cornerstone. The supporting affidavit merely asserted a risk of execution without indicating what was to be executed, its value, or any execution step taken. Delay of eight days satisfied that limb. Security was only a general profession of willingness. Arguability of the appeal and nugatory-ness are rule 5(2)(b) considerations, not Order 42 Rule 6(2) tests.
Costs of the application
Costs awarded to the Respondent; they should not abide the appeal
Section 27(1) gives a judicial discretion, costs generally following the event. The Respondent did not invite the application, was put to expense, and succeeded on grounds independent of the merits of the appeal, so she need not await the appeal's outcome to be compensated.
Legal principles established
#- Stay of execution under Order 42 Rule 6 presupposes a decree or order capable of execution; a negative order dismissing an application cannot be stayed
- The ELC's appellate power to stay is confined to the decree or order appealed from
- Substantial loss must be demonstrated, not merely asserted, and is the cornerstone of the stay jurisdiction
Court orders
#- 1.The Notice of Motion dated 24th December 2025 is dismissed
- 2.The costs of the application are awarded to the Respondent
- 3.The Appellant shall, within thirty (30) days of the date hereof, file and serve the Record of Appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court (Environment and Land), Kisumu
- Kisumu MCELC No. E074 of 2020
- Jurisdiction invoked
- Appellate jurisdiction of the Environment and Land Court over appeals from subordinate courts in environment and land matters; stay of execution under Order 42 Rule 6 of the Civil Procedure Rules, 2010
Relief refused
#Stay of execution of the ruling of 16th December 2025 pending hearing of the application and of the appeal (prayers 2 and 3)
The impugned ruling was a negative order incapable of execution, and in any event the mandatory conditions of Order 42 Rule 6(2), especially substantial loss, were not demonstrated
Costs of the application (prayer 5)
Costs follow the event; the Respondent succeeded in an application she did not invite
Costs
The costs of the application are awarded 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.
Where the order appealed from commands nothing, there is nothing whose execution the Court can arrest, and the jurisdiction is not engaged.
The conditions so prescribed are conjunctive, not alternative. Substantial loss is the cornerstone of the jurisdiction.
Substantial loss must be demonstrated; it is not enough to assert it.
It is not a reservoir from which a court may draw an order which the express provisions of the Rules do not permit, and it may not be deployed to achieve indirectly that which cannot be achieved directly.
i. The Notice of Motion dated 24th December 2025 is accordingly dismissed. ii. The costs of the application are awarded to the Respondent. iii. The Appellant shall, within thirty (30) days of the date hereof, file and serve the Record of Appeal.
Issues in the judgment
#The judgment itself notes internal inconsistencies in the Appellant's papers regarding the date of the impugned ruling
The Application's prayers reference a ruling of 16th November 2025 while the court resolves the matter on the basis of a ruling of 16th December 2025
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ouma v Dave (Environment and Land Appeal E106 of 2025) [2026] KEELC 5371 (KLR)", Case Analysis (2026). ELC Appeal No. E106 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5371/eng@2026-08-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.