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Court of AppealDismissedNotice of Motion dated 15th May 2025· [2026] KECA 1519 (KLR)

Jackson Kamau Ndegwa v Paul Mabwa Asila & 1 other

Court of Appeal
31 July 2026
LKL. KimaruLNL. NjugunaJOJ. O. Okello
1,205 words in judgment
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The bottom line

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The Court of Appeal ruled you cannot 'stay' a dismissal — if a court orders nothing, there is nothing to pause while you appeal.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Kimaru, Njuguna and Okello, JJ.A) delivered on 31st July 2026 on a notice of motion dated 15th May 2025 brought under rules 5 and 47 of the Court of Appeal Rules and sections 3A, 3B, 4 and 5 of the Appellate Jurisdiction Act. The applicant sought a stay of execution of a ruling of the Environment and Land Court (Angote, J.) of 23rd January 2025, which had dismissed his application seeking payment to him of a contractual sum, interest and damages, premised on an alleged agreement to facilitate the release to the 1st respondent of a Kshs 120,000,000 consent judgment against Nairobi City County from ELC Case No. 247 of 2019. The court considered only one issue: whether the dismissal order was capable of being stayed. Applying its settled jurisprudence, including Western College of Arts and Applied Sciences v. Oranga and Co-operative Bank of Kenya Ltd v. BIFU (Kenya), the court held that the dismissal of an application for an interlocutory mandatory injunction is a negative order - one that requires no party to perform any positive act - and therefore nothing arises from it that can be executed or stayed. The motion was accordingly dismissed with costs to the respondent. The decision binds subordinate courts and reiterates that stay of execution is unavailable in respect of negative orders.

Key legal issues

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01

Whether a stay of execution can issue in respect of an order dismissing an application for an interlocutory mandatory injunction

Holding

No. Such a dismissal is a negative order; there is nothing to execute or stay, and the Court of Appeal will not grant a stay in respect of it.

Reasoning

The court restated the long-standing position from Western College of Arts and Applied Sciences v. Oranga, that where the High Court has not ordered any party to do anything, refrain from doing anything, or pay any sum, there is nothing arising from the judgment for the appellate court to stay. It reinforced this with Co-operative Bank of Kenya Ltd v. BIFU (Kenya), which holds that stay presupposes a positive order whose performance is to be delayed. The order under challenge merely dismissed an interlocutory mandatory injunction application, imposing no obligation on any party, so the application failed.

p. 3

Legal principles established

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  • A negative order - one where the court has not ordered any party to perform a positive act, refrain from doing anything, or pay any sum - cannot be stayed pending appeal.
  • An order for stay of execution presupposes the existence of a positive order setting out obligations in a decree that can be delayed in performance.

Court orders

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  1. 1.The notice of motion dated 15th May 2025 is dismissed
  2. 2.Costs of the application to the respondent
On appeal from
Environment and Land Court
ELC Case No. 9 of 2024 (arising from ELC Case No. 247 of 2019)
Jurisdiction invoked
Rules 5 and 47 of the Court of Appeal Rules and sections 3A, 3B, 4 and 5 of the Appellate Jurisdiction 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, "Jackson Kamau Ndegwa v Paul Mabwa Asila & 1 other", Case Analysis (2026). Notice of Motion dated 15th May 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1519/eng@2026-07-31

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