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ELCDismissedEnvironment and Land Appeal E008 of 2025· [2026] KEELC 5799 (KLR)

Ali v Ibrahim

Environment and Land Court
24 September 2026
3,662 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~15 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to pause execution of a land judgment because the applicant gave no specific evidence of the loss he would suffer.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Garissa disposed of the Appellant/Applicant Abdi Ahmed Ali's Notice of Motion dated 17 June 2025 seeking stay of execution of the judgment and decree of the Principal Magistrate's Court at Garissa delivered on 12 June 2025 in CMELC Suit No. E021 of 2022, pending the hearing of his appeal. The application was brought under Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules, sections 3 and 3A of the Civil Procedure Act and section 13(1) of the Environment and Land Court Act. The Respondent, Fatuma Sahal Ibrahim, the successful litigant below, opposed, arguing that the Applicant made only a general assertion of substantial loss and that execution was a lawful consequence of a valid judgment. The Court framed a single issue: whether the Applicant met the threshold for stay under Order 42 Rule 6(2), whose conditions — substantial loss, absence of unreasonable delay and security — are cumulative. While promptitude was satisfied (the application was filed five days after judgment), the Applicant's supporting affidavit merely reproduced conclusions of irreparable loss and a nugatory appeal without particulars or evidence. Reliance on the extracted decree and possible eviction did not, without more, establish substantial loss. The Court also held that the overriding objective under sections 1A and 1B of the Civil Procedure Act cannot supplant the statutory conditions, and that arguability of the appeal cannot substitute for proof of substantial loss. The Notice of Motion was dismissed with costs to the Respondent, without prejudice to the pending appeal.

Key legal issues

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01

Substantial loss under Order 42 Rule 6(2)

Holding

The Applicant failed to demonstrate substantial loss; his affidavit merely reproduced conclusions of irreparable loss and nugatory appeal without particulars or evidence

Reasoning

The Court held that beyond a general assertion that execution would occasion irreparable loss, the Applicant identified no nature of loss, no explanation of irreversible consequences, and no evidential material. Reliance on extracted decree and possible eviction was, without more, insufficient under Machira and Wangalwa.

p. 6
02

Unreasonable delay

Holding

Filing five days after judgment satisfied the promptitude requirement

Reasoning

The application was filed on 17 June 2025, five days after the impugned judgment. The Court was satisfied it was made without unreasonable delay, though noting the one-year interval before delivery of the ruling was not attributable to the Applicant.

p. 6
03

Security for due performance of the decree

Holding

It was unnecessary to consider security since failure on substantial loss was dispositive

Reasoning

Because the Order 42 Rule 6(2) conditions are cumulative, failure to establish substantial loss alone disposed of the application, and the Court did not reach the security requirement.

p. 7
04

Arguability of the appeal cannot substitute for statutory conditions

Holding

An arguable appeal does not dispense with the obligation to demonstrate substantial loss under Order 42 Rule 6(2)

Reasoning

The Court distinguished stay applications under Order 42 Rule 6 from Rule 5(2)(b) Court of Appeal applications, holding that the express statutory conditions of substantial loss, promptitude and security must be met and arguability cannot replace any of them.

p. 6

Legal principles established

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  • The conditions in Order 42 Rule 6(2) for stay of execution are cumulative, not alternative, and must all be satisfied
  • Commencement or likelihood of execution does not by itself amount to substantial loss
  • A general, unparticularised assertion of substantial loss is insufficient; the loss must be specified and supported by evidence
  • The overriding objective cannot be used as a substitute for the statutory conditions for stay of execution

Court orders

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  1. 1.The Notice of Motion dated 17 June 2025 is dismissed
  2. 2.The Applicant shall bear the Respondent's costs of the application
  3. 3.The dismissal of the application does not determine the merits of the pending appeal, which shall be heard and determined in accordance with the applicable law and procedure
On appeal from
Principal Magistrate's Court at Garissa
CMELC Suit No. E021 of 2022
Jurisdiction invoked
Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules; sections 3 and 3A of the Civil Procedure Act; section 13(1) of the Environment and Land Court Act

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, "Ali v Ibrahim", Case Analysis (2026). Environment and Land Appeal E008 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5799/eng@2026-09-24

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