Iraru alias Kenyatta & 7 others v Welime (suing as the Legal Representative of the Estate of David Wanjala Welime - Deceased)
The bottom line
#The Court of Appeal struck out a stay application because no notice of appeal was filed for the first ruling, and a dismissal order cannot be stayed.
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 Court has jurisdiction under Rule 5(2)(b) to entertain a stay application in respect of the first ruling of 11th December 2024 in the absence of a valid notice of appeal
- 2.Whether the orders in the second ruling of 27th February 2025, dismissing the applicants' review application, are capable of being stayed
- 3.Whether the intended appeal is arguable and would be rendered nugatory absent stay
Key legal issues
#Jurisdiction under Rule 5(2)(b) absent a valid notice of appeal
The Court has no jurisdiction to entertain stay prayers arising from the first ruling because no notice of appeal was filed in respect of it and time for filing has expired
Rule 5(2)(b) presupposes a valid notice of appeal and, where applicable, a properly lodged appeal. The applicants filed a notice of appeal only for the second ruling, yet all prayers in the application targeted the first ruling. Citing Owners of Motor Vessel 'Lillian S' and Equity Bank v West Link MBO, the Court held it must down its tools for want of jurisdiction.
Whether a dismissal order can be stayed
An order dismissing a claim is a negative order incapable of being stayed; the second ruling dismissing the applicants' review application cannot be stayed
Even assuming the application rested solely on the second ruling, which was underpinned by a valid notice of appeal, the prayers were unavailable. The applicants' review application was dismissed, and a dismissal requires no party to do or refrain from anything, leaving nothing to stay. The Court cited Mokua v Mokua for this proposition.
Mischaracterisation of the second ruling as confirming the first
The prayer's wording that the second ruling 'confirmed' the first ruling was incorrect and misleading; the two applications were totally different
The first application was by the respondent seeking mandatory injunctive orders; the second was by the applicants seeking review of the first ruling. Describing the second ruling as confirming the first was a misnomer, and the Court found the wording deliberately misleading, part of a pattern of obfuscation aimed at avoiding the jurisdiction question.
Legal principles established
#- Rule 5(2)(b) jurisdiction presupposes a valid notice of appeal or a properly lodged appeal; without it the Court cannot entertain a stay application
- A dismissal results in a negative order which is incapable of being stayed because there is nothing to stay
Court orders
#- 1.The application dated 22nd July 2025 is struck out with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Bungoma
- ELC No. E018 of 2024
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules; Article 159 of the Constitution of Kenya
Relief refused
#Stay of execution of the ELC rulings of 11th December 2024 and 27th February 2025 pending an intended appeal
No valid notice of appeal was filed in respect of the first ruling, so the Court had no jurisdiction; the second ruling was a dismissal, a negative order incapable of being stayed
Costs
The application is struck out with costs 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.
Jurisdiction is everything. Without it, a court has no power to make one more step. Where a court has no jurisdiction, there would be no basis for a continuation of proceedings pending other evidence.
The jurisdiction of this Court under Rule 5(2)(b) is predicated upon the existence of a valid notice of appeal or an appeal that has been lodged.
It is our view that, the jurisdiction of this Court under Rule 5(2)(b) has not been properly invoked. The application is accordingly struck out with costs to the respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Iraru alias Kenyatta & 7 others v Welime (suing as the Legal Representative of the Estate of David Wanjala Welime - Deceased)", Case Analysis (2025). Civil Application E114 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2287/eng@2025-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.