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Court of AppealDismissedNot stated in judgment (application arising from appeal against ELC Appeal No. E005 of 2023, Voi)

Mwasunguia & another v Kimbio (Civil Appeal (Application) E223 of 2024) [2025] KECA 934 (KLR)

Court of Appeal of Kenya
23 May 2025
1,039 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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The Court of Appeal dismissed a bid to halt execution of a land judgment, clarifying it can only stay the decision actually on appeal before it.

What this practically means

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Executive summary

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The applicants, having lost at the trial (Chief Magistrate's Court at Voi, MCELC Case No. E040 of 2021) and on first appeal (ELC at Voi, ELC Appeal No. E005 of 2023, E. K. Wabwoto, J., judgment of 19th September 2024), filed a Notice of Motion dated 28th November 2024 in the Court of Appeal at Mombasa under rule 5(2)(b) of the Court of Appeal Rules, 2022. They sought stay of execution of the trial court's judgment and decree both pending the application and pending their appeal to the Court of Appeal. The respondent filed no reply, submissions, nor appeared. A full bench of Murgor, Laibuta and Ngenye-Macharia, JJA delivered a single judgment dismissing the Motion. The Court held that rule 5(2)(b) empowers it to stay execution only of the decision challenged on appeal before it - here the ELC judgment - and not the decree of a subordinate court already dealt with in that judgment. Prayer 3, seeking stay of the Magistrate's court decree, was beyond the Court's remit; staying it would amount to reversing the ELC's dismissal of the first appeal at an interlocutory stage, a negative order incapable of being stayed, applying Western College of Arts and Applied Sciences v E. P. Oranga and Co-operative Bank of Kenya Ltd v BIFU. Because the respondent did not participate, the Court made no order as to costs. The Motion was dismissed in its entirety.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Court should stay execution of the judgment and decree in Voi Chief Magistrate's Court MCELC Case No. E040 of 2021 pending the hearing of the application and pending appeal
  2. 2.Whether the Court has jurisdiction under rule 5(2)(b) to stay the judgment of the subordinate court rather than the decision on appeal to it
  3. 3.Whether the applicants' Notice of Motion dated 28th November 2024 has merit

Key legal issues

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01

Scope of the Court's jurisdiction under rule 5(2)(b) of the Court of Appeal Rules, 2022

Holding

The Court may only stay execution of the decision it is seized of on appeal - here the ELC judgment - and cannot stay the decree of the subordinate court that was the subject of that ELC judgment.

Reasoning

Rule 5(2)(b) anchors the Court's discretionary power to stay execution of an impugned decision pending appeal. What is on appeal to the Court of Appeal is the judgment and decree of the ELC at Voi. A prayer seeking stay of the Magistrate's court decree is outside the Court's remit, and granting it would effectively reverse the ELC's dismissal of the first appeal at an interlocutory stage.

p. 3
02

Whether the dismissal of the applicants' appeal by the ELC could be stayed

Holding

The ELC's dismissal of the appeal was a negative order incapable of being stayed, following Western College of Arts and Applied Sciences v E. P. Oranga and Co-operative Bank of Kenya Limited v Banking Insurance & Finance Union (Kenya).

Reasoning

The ELC judgment dismissed the applicants' first appeal, leaving the trial court's judgment intact. A dismissal contains no executable positive order. Seeking stay of the subordinate court's decree instead would be tantamount to reversing the ELC decision interlocutorily, which this Court on a rule 5(2)(b) application has no power to do.

p. 3

Legal principles established

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  • Rule 5(2)(b) empowers the Court of Appeal to stay execution only of the decision challenged on appeal before it, not of a subordinate court decision already dealt with in that impugned judgment
  • A dismissal of an appeal is a negative order that is incapable of being stayed

Court orders

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  1. 1.The Notice of Motion dated 28th November 2024 is dismissed
  2. 2.No order as to costs

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
On appeal from
Environment and Land Court at Voi
ELC Appeal No. E005 of 2023
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2022

Relief refused

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Stay of execution of the judgment and decree of the Chief Magistrate's Court at Voi pending hearing of the application

Prayer 2 fell with the application as a whole; further, stay of the subordinate court's decree would amount to reversing the ELC decision at an interlocutory stage, and that decision was a negative order incapable of being stayed

p. 3

Stay of execution of the judgment and decree of the Chief Magistrate's Court at Voi pending appeal to the Court of Appeal (Prayer 3)

Rule 5(2)(b) empowers the Court to stay the decision on appeal before it, not that of a subordinate court already dealt with in the impugned judgment; the prayer was beyond the Court's remit

p. 3

Costs

No order as to costs - the respondent having failed to file any reply or submissions and having failed to appear at the hearing, the Court made no order as to costs

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Rule 5(2) (b) empowers the Court to stay execution of the decision challenged on appeal, and not that of a subordinate court already dealt with in the impugned judgment.
p. 3Jurisdiction under rule 5(2)(b) - stay limited to the decision on appeal
which decision dismissed the applicants' appeal to the ELC, and which constitutes negative orders incapable of being stayed
p. 3Negative orders incapable of being stayed
we reach the inescapable conclusion that the instant Application has no merit and is hereby dismissed. The respondent having failed to file any reply to the Motion or to file written submissions, and having further failed to appear in court at the hearing of the Motion, we make no order as to costs.
p. 3Final orders - dismissal of the Motion and costs

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, "Mwasunguia & another v Kimbio (Civil Appeal (Application) E223 of 2024) [2025] KECA 934 (KLR)", Case Analysis (2025). Not stated in judgment (application arising from appeal against ELC Appeal No. E005 of 2023, Voi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/934/eng@2025-05-23

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