James Kayioni Kaikai & 1 other v Korinko Nkolia & 6 others
The bottom line
#Kenya's Court of Appeal ruled that a negative order striking out a petition cannot be stayed, and costs awards cannot support a stay application.
What this practically means
#Executive summary
#Key legal issues
#Whether a negative order (striking out a petition) is capable of being stayed under Rule 5(2)(b)
It is not. An order striking out a petition makes no positive order requiring anything to be done or restraining anything from being done, and is therefore incapable of being stayed.
The court applied settled jurisprudence that for a stay of execution to lie, the order or decree sought to be stayed must be positive. By striking out the applicants' petition, the trial court did not direct any act or restraint; it merely left the position as it was. An applicant who cannot cross the threshold of identifying an existing positive order capable of being stayed fails at the first hurdle of the Rule 5(2)(b) principles and need not address arguability or nugatory-ness substantively.
Whether execution of assessed costs can be a basis for stay pending appeal
Costs cannot form the basis of an application for stay of execution pending appeal; the applicants' fear of execution of costs assessed at Kshs. 739,000 did not avail them.
The court held that costs usually follow the event and cannot be the foundation of a Rule 5(2)(b) stay application. Even where costs have been assessed and execution is feared, an applicant cannot convert an award of costs into a positive order for purposes of stay. The 6th and 7th respondents had in any event made no application to execute the ruling.
Legal principles established
#- An order or decree sought to be stayed under Rule 5(2)(b) must be positive in nature; negative orders cannot be stayed.
- An award of costs cannot form the basis of an application for stay of execution pending appeal before the Court of Appeal.
- To succeed under Rule 5(2)(b) an applicant must show, first, that the appeal or intended appeal is arguable and, secondly, that it will be rendered nugatory unless stay is granted.
Court orders
#- 1.The application under Rule 5(2)(b) of the Court of Appeal Rules was dismissed
- 2.Costs awarded to the 6th and 7th respondents
- On appeal from
- Environment and Land Court
- Not stated in the judgment
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (original and discretionary jurisdiction to grant stay pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "James Kayioni Kaikai & 1 other v Korinko Nkolia & 6 others", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/787/eng@2026-04-24
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.