Ouma v Dave (Environment and Land Appeal E106 of 2025) [2026] KEELC 5371 (KLR) (31 August 2026) (Ruling)

Ouma v Dave (Environment and Land Appeal E106 of 2025) [2026] KEELC 5371 (KLR) (31 August 2026) (Ruling) Neutral citation: [2026] KEELC 5371 (KLR) Republic of Kenya In the Environment and Land Court at Kisumu Environment and Land Appeal E106 of 2025 EK Wabwoto, J August 31, 2026 Between Rose Akinyi Ouma Appellant and Grace Auma Dave Respondent Ruling 1.Before me for determination is the Appellant/Applicant’s Notice of Motion dated 24th December 2025 brought under sections 3, 3A and 63 of the Civil Procedure Act, Order 42 Rules 6(1), (2), (4) and (6), Order 9 Rules 9 and 10, Order 22 Rule 22 and Order 50 Rule 1 of the Civil Procedure Rules, 2010 and all other enabling provisions of the law. 2.The Motion is supported by the affidavit of ROSE Akinyi Ouma sworn on 24th December 2025 and is opposed by way of the Replying Affidavit of Grace Auma Dave sworn on 21st July 2026. The Motion seeks the following orders:1.Spent…2.That this Honourable Court be pleased to grant stay of execution of the order emanating from the ruling of the court of 16th November 2025 in Kisumu MCELC/E074/2020 herein pending hearing and determination of this application.3.That this Honourable Court be pleased to grant stay of execution of the order emanating from the ruling of the court of 16th November 2025 in Kisumu MCELC/E074/2020 herein pending hearing and determination of this appeal.4.Spent…5.That costs of this application be provided for. 3.This ruling is accordingly confined to prayers 2, 3 and 5. The Appellant/Applicant’s Case 4.The background to the application, so far as it emerges from the record, is as follows. The Respondent instituted suit against the Appellant in Kisumu MCELC No. E074 of 2020. An interlocutory judgment was entered against the Appellant and a final judgment was thereafter delivered on 22nd September 2022. By a Notice of Motion dated 28th July 2025, the Appellant moved the trial court to set aside the interlocutory judgment and the final judgment and to have the suit heard on its merits. By a ruling delivered on 16th December 2025, Hon. L. D. Ogombe (SPM) dismissed that application with costs to the Respondent. Aggrieved by that decision, the Appellant filed a Memorandum of Appeal dated 24th December 2025 and, contemporaneously, the present application. 5.The grounds on the face of the Motion are that a Memorandum of Appeal has been filed against the ruling of the trial court; that the appeal is arguable and has high chances of success; that orders of stay of execution were not granted, so that the Appellant risks execution and will suffer irreparable loss; that the appeal will be rendered nugatory and/or useless if the application is not granted; that the application has been made without unreasonable delay; that the Respondent will suffer no prejudice if the orders sought are granted; that the Appellant is ready and willing to abide by such security conditions as the Court may deem fit; and that it is in the interests of justice that the application be allowed. 6.In her supporting affidavit, the Appellant depones that she was sued by the Respondent in Kisumu MCELC No. E074 of 2020; that an interlocutory judgment was entered against her; that she instructed her advocates to file an application to set aside the judgment and reinstate the suit for hearing on the merits, but that the application was dismissed without any orders of stay of execution; that being aggrieved she has filed an appeal, a copy of the Memorandum of Appeal being annexed and marked ‘RAO – 1’; that the appeal is arguable with high chances of success; that she risks execution since no orders of stay were granted; that the application has been brought without unreasonable delay; that the Respondent will suffer no prejudice; and that she is ready and willing to abide by such security conditions as the Court may impose. 7.The Memorandum of Appeal raises four grounds, namely that the learned Magistrate erred in law and in fact in finding that the Appellant had failed to satisfy the conditions for the setting aside of the interlocutory judgment of 22nd September 2022; in finding that the Appellant was indolent; in finding that the Appellant’s defence was irregular; and in finding that the application to set aside had been brought inordinately late in the day. The Respondent’s Case 8.The application is opposed. In her Replying Affidavit sworn on 21st July 2026, the Respondent depones that she has read the application and the supporting affidavit and has been advised by her advocates, which advice she believes to be true, that the application is devoid of merit both in law and in fact. 9.Her central contention is that the order sought to be stayed is purely negative. The trial court, she depones, merely dismissed the Appellant’s application without directing the Appellant to perform any positive act or imposing any executable obligation other than costs; that consequently there exists no positive order capable of execution to warrant an order for stay under Order 42 Rule 6 of the Civil Procedure Rules; that the only consequence flowing from the impugned ruling is an award of costs in her favour; and that the Appellant has therefore failed to demonstrate any imminent or actual execution capable of being stayed. The application, she says, is premature, speculative and intended merely to delay her from enjoying the fruits of the judgment delivered on 22nd September 2022. 10.The Respondent further depones that the Appellant has in any event failed to satisfy the mandatory conditions for the grant of stay under Order 42 Rule 6, in particular by failing to demonstrate the substantial loss she stands to suffer if stay is not granted or the existence of any executable decree arising from the impugned ruling. She adds that the allegation that execution may issue is speculative, the only executable aspect of the ruling being costs whose quantum has not been ascertained through taxation, and that should the Appellant ultimately succeed in the appeal, any taxed costs already paid are recoverable in accordance with the law, so that no irreparable prejudice will be occasioned. She concludes that the application is legally incompetent, frivolous, vexatious and an abuse of the process of the Court, and ought to be dismissed with costs. Submissions 11.The Respondent filed written submissions dated 3rd August 2026 through the firm of M/s Omedo Leah & Associates Advocates. Counsel framed two issues for determination: whether the ruling appealed from constitutes a negative order incapable of being stayed; and whether the Appellant has satisfied the requirements for the grant of stay under Order 42 Rule 6 of the Civil Procedure Rules. 12.On the first issue, counsel submitted that the effect of the impugned ruling was merely to leave the parties in the position they occupied before the setting-aside application was filed, the trial court having made no order requiring the Appellant to perform any act, vacate any property, surrender possession, pay any decretal amount or comply with any positive obligation capable of execution. Counsel relied on Western College of Arts and Applied Sciences v EP Oranga & 3 others [1976] KECA 15 (KLR), Raymond M. Omboga v Austine Pyan Maranga, Kisii HCCA No. 15 of 2010 (as cited in Nathan Muhatia Pala t/a Muhatia Pala Auctioneers v Nyamai [2023] KEELC 20984 (KLR)), Shade Manufacturers and Hotel Limited v Serah Mweru Mutuu & 3 others [2018] KECA 205 (KLR) and Munene & 4 others v Mathenge [2024] KEELC 5064 (KLR), for the proposition that an order dismissing a suit or an application is a negative order incapable of execution and, consequently, incapable of being stayed. 13.On the second issue, and without prejudice to the foregoing, counsel submitted that an applicant seeking stay must demonstrate that substantial loss may result unless the order is made, that the application has been brought without unreasonable delay, and that such security as the Court may order has been provided. It was urged that the Appellant has not demonstrated any substantial loss whatsoever and that no executable decree arises from the impugned ruling capable of occasioning substantial loss, with the result that she has failed to satisfy the statutory threshold for the exercise of this Court’s discretion. 14.No submissions on behalf of the Appellant were placed before me at the time of preparing this ruling. I have nonetheless considered the Appellant’s case as fully as it is pleaded in the Motion and the supporting affidavit, and I have approached it on its merits. Analysis and Determination 15.I have carefully considered the application, the supporting affidavit and its annexure, the Replying Affidavit, the written submissions and the authorities relied upon, together with the record as a whole. In my respectful view, the following issues arise for determination:(i)Whether the ruling of 16th December 2025 is an order capable of being stayed;(ii)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; and(iii)Who should bear the costs of the application. Preliminary Observations on the Record 16.Before turning to those issues, two observations on the state of the Appellant’s papers are necessary. 17.First, the Notice of Motion, the two certificates of urgency, the chamber summons and the supporting affidavits filed on behalf of the Appellant are each headed “In The High Court At Kericho” and are described as “Appeal Case No. E 106 of 2025”. This is an appeal from a subordinate court exercising jurisdiction in an environment and land matter. It lies to, and is properly before, this Court sitting at Kisumu as ELC Appeal No. E106 of 2025. Relatedly, the chamber summons is expressed to be taken out under the Judicature Act, Cap. 8 and the High Court (Practice and Procedure) Rules, neither of which governs interlocutory practice in this Court. 18.Secondly, the impugned decision is variously described in the Appellant’s own documents as having been delivered on 16th July 2025 (ground (a) of the Motion), on 16th November 2025 (both certificates of urgency and prayers 2 and 3 of the Motion) and on 16th December 2025 (paragraph 4 of the supporting affidavit and the Memorandum of Appeal). One of the certificates of urgency further describes the decision as a “judgment” rather than a ruling, and its author certifies the urgency on behalf of the “Appellant/Respondent”. 19.These are drafting lapses rather than jurisdictional defects. Article 159(2)(d) of the Constitution enjoins the Court to administer justice without undue regard to procedural technicalities, and I am satisfied that no prejudice has been occasioned to the Respondent, who has plainly understood the case she was called upon to meet and has answered it fully. I therefore proceed on the footing common to both parties, namely that the decision sought to be stayed is the ruling of Hon. L. D. Ogombe (SPM) delivered on 16th December 2025 in Kisumu MCELC No. E074 of 2020. That said, counsel is respectfully reminded that pleadings and interlocutory applications are not empty formalities. A party inviting the Court to exercise a discretionary jurisdiction must place before it an accurate and internally consistent record. (i) Whether the Ruling of 16th December 2025 is an Order Capable of Being Stayed 20.Order 42 Rule 6(1) of the Civil Procedure Rules, 2010 provides that no appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the court appealed from may order, and that the court to which such appeal is preferred may, for sufficient cause, order stay of execution of such decree or order. 21.The provision is directed at the execution of “such decree or order” that is to say, the decree or order appealed from. The jurisdiction it confers therefore presupposes the existence of a decree or order which is capable of execution. Where the order appealed from commands nothing, there is nothing whose execution the Court can arrest, and the jurisdiction is not engaged. 22.The impugned ruling did no more than dismiss the Appellant’s Notice of Motion dated 28th July 2025, with costs. It did not direct the Appellant to do, or to refrain from doing, anything. Its effect was simply to leave the parties precisely where they stood immediately before that application was filed. 23.An order of that character is, in the settled language of our courts, a negative order. The locus classicus is Western College of Arts and Applied Sciences v EP Oranga & 3 others [1976] KECA 15 (KLR), in which the Court of Appeal, confronted with an intended appeal against a dismissal, asked what there was to be executed under the judgment and answered that the court below had merely dismissed the suit with costs, so that any execution could only be in respect of costs. 24.That principle has been applied consistently since. In Raymond M. Omboga v Austine Pyan Maranga, Kisii HCCA No. 15 of 2010, cited to me through Nathan Muhatia Pala t/a Muhatia Pala Auctioneers v Nyamai [2023] KEELC 20984 (KLR), it was held that an order dismissing an application is negative in nature and incapable of execution save, perhaps, as to costs; that where no positive order capable of execution has been made in favour of the respondent there can be no stay of execution of such an order; and that in such a case the questions of substantial loss and of the appeal being rendered nugatory do not arise at all, because the refusal simply leaves the applicant in the situation in which he found himself before coming to court. Decisions to the same effect were cited to me in Shade Manufacturers and Hotel Limited v Serah Mweru Mutuu & 3 others [2018] KECA 205 (KLR) and Munene & 4 others v Mathenge [2024] KEELC 5064 (KLR). 25.Applying those principles to the facts before me, the ruling of 16th December 2025 was a negative order. The only executable consequence flowing from it is the award of costs to the Respondent, and even that has not yet crystallised into an executable sum: there is nothing on the record to suggest that a bill of costs has been filed, still less taxed. In respect of costs, moreover, the Appellant’s position is fully protected, since costs once taxed and paid are recoverable should the appeal succeed. 26.I am, however, alive to a difficulty which the Respondent’s formulation does not entirely meet, and which I ought to address rather than pass over. Read fairly and as a whole, the supporting affidavit conveys an apprehension directed not at the ruling of 16th December 2025 at all, but at the decree arising from the judgment of 22nd September 2022 in Kisumu MCELC No. E074 of 2020. The Appellant’s real anxiety is that, the setting-aside application having failed, the Respondent is now at liberty to levy execution upon that decree. 27.That apprehension, genuine though it may be, cannot be met by an order under Order 42 Rule 6 in this appeal. The Memorandum of Appeal impugns the ruling of 16th December 2025 and nothing else. The judgment and decree of 22nd September 2022 are not the subject matter of this appeal. This Court’s power to stay execution in the exercise of its appellate jurisdiction is confined to the decree or order appealed from; it cannot, through the medium of an interlocutory application in this appeal, suspend a decree which is not before it. 28.Nor does section 3A of the Civil Procedure Act assist the Appellant. The inherent power of the Court exists to prevent abuse of its process and to secure the ends of justice. 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. 29.Even assuming, without deciding, that there exists some residual jurisdiction to preserve the substratum of an appeal against a refusal to set aside a default judgment, its exercise would depend entirely upon the material laid before the Court. Here that material is conspicuously absent. Neither the judgment of 22nd September 2022 nor the decree extracted from it has been exhibited. Indeed, not even the ruling of 16th December 2025 the very decision under appeal – is annexed to the supporting affidavit, the sole annexure being the Memorandum of Appeal marked ‘RAO – 1’. The Court is accordingly in the dark as to what was decreed, as to the subject matter or value of the suit, as to the parcel of land (if any) in issue, and as to whether execution has been commenced or even threatened. A court cannot preserve that which it has not been shown. 30.On the first issue I therefore find and hold that the ruling of 16th December 2025 is a negative order, incapable of execution and consequently incapable of being stayed. That finding is dispositive of prayers 2 and 3. Lest I be thought to have shut out the Appellant on a purely technical footing, I go on to consider the second issue. (ii) Whether the conditions under Order 42 Rule 6(2) have been satisfied 31.Order 42 Rule 6(2) provides that no order for stay of execution shall be made under sub-rule (1) unless the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay, and unless such security as the court orders for the due performance of the decree or order as may ultimately be binding on the applicant has been given by the applicant. 32.The conditions so prescribed are conjunctive, not alternative. Substantial loss is the cornerstone of the jurisdiction. In Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] KLR 410, the Court of Appeal emphasised that it is substantial loss which an order of stay is designed to prevent, and that it constitutes the very substratum of the jurisdiction. 33.Substantial loss must be demonstrated; it is not enough to assert it. In James Wangalwa & another v Agnes Naliaka Cheseto [2012] eKLR, It was observed that an applicant must establish factors showing that execution will create a state of affairs which irreparably affects or negates the very essential core of the applicant as the successful party in the appeal, and that the mere fact that execution has been set in motion, or is threatened, does not of itself amount to substantial loss. 34.Measured against that standard, the Appellant’s case is bare. Paragraph 7 of the supporting affidavit states no more than that she risks execution because no orders of stay were granted. There is no indication of what is to be executed, of its nature or value, of any property or interest imperilled, or of any step whatsoever actually taken by the Respondent towards execution. Ground (c) of the Motion is cast in the same wholly general terms. Assertions of that kind do not discharge the burden which Order 42 Rule 6(2)(a) places upon an applicant, and I so find. 35.As to delay, the ruling was delivered on 16th December 2025 and the application was dated and filed on 24th December 2025, a period of eight days. There has plainly been no unreasonable delay, and that limb of the rule is satisfied. Standing alone, however, it does not avail the Appellant. 36.As to security, the Appellant has done no more than express a general willingness to abide by such conditions as the Court may impose see ground (g) of the Motion and paragraph 10 of the supporting affidavit. No terms have been proposed and no material has been placed before the Court touching upon her ability to furnish security. A generalised profession of willingness is a slender foundation upon which to invoke the discretion. Had the Appellant otherwise succeeded, this limb would not by itself have defeated the application, for the Court could have imposed appropriate terms; but on the present record it adds nothing to her case. 37.A further word is warranted on the emphasis which the Motion places upon the arguability of the appeal and upon its being rendered nugatory. Those are the considerations which govern an application for stay before the Court of Appeal under rule 5(2)(b) of the Court of Appeal Rules. They are not the tests prescribed by Order 42 Rule 6(2), which is the provision expressly invoked by the Appellant and which governs the exercise of this Court’s discretion on a first appeal from a subordinate court. The strength of the appeal is not among the conditions which the Appellant was required to satisfy, and her assertions on that score cannot fill the gap left by the absence of any demonstration of substantial loss. 38.Accordingly, and without prejudice to my finding on the first issue, I find that the Appellant has failed to satisfy the mandatory conditions prescribed by Order 42 Rule 6(2) of the Civil Procedure Rules, 2010. Prayer 3 must fail on this ground also. 39.Prayer 2 sought a stay pending the hearing and determination of the application itself. That application having now been heard and determined, the prayer is spent and calls for no substantive order. (iii) Costs 40.Section 27(1) of the Civil Procedure Act provides that the costs of and incidental to all suits are in the discretion of the court, which discretion falls to be exercised judicially, the general rule being that costs follow the event unless the court for good reason otherwise orders. 41.Prayer 5 asks that the costs of the application be provided for, while the Respondent seeks costs. The Respondent did not invite this application. She was served, put to the trouble and expense of instructing counsel, swearing a replying affidavit and filing submissions, and she has succeeded. I see no reason to depart from the general rule. 42.I have considered whether, the appeal being pending, the costs of this application ought instead to abide its outcome. I do not think so. The application has failed on grounds which are independent of, and which disclose nothing about, the merits of the appeal. There is no reason why the Respondent should be required to await the determination of the appeal in order to be compensated for an interlocutory contest which she did not seek and which she has won. 43.For the avoidance of doubt, nothing in this ruling is to be taken as an expression of any opinion, one way or the other, upon the merits of the appeal, which remains to be heard and determined on its own footing. Although the Appellant has not persuaded me that a stay should issue, the interests of both parties will best be served by the expeditious disposal of the appeal itself, and I shall give directions to that end. Disposition 44.In the result, and for the reasons set out above, I make the following orders: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. DATED, SIGNED AND DELIVERED AT KISUMU THIS 31ST DAY OF AUGUST 2026.E. K. WABWOTOJUDGEIn the presence of:-Ms. Abir for the Appellant/Applicant.Ms. Omedo for the Respondent.Court Assistant: Joanne Omondi.