M'ikiao v M’Kiambati & another
The bottom line
#Kenya's Court of Appeal confirmed you cannot stay a court order that simply dismissed your case — only orders requiring someone to do something can be stayed.
What this practically means
#Executive summary
#Key legal issues
#Whether a negative order (dismissal of suit) can be stayed
It cannot; only positive orders are capable of being stayed, and consequently the applicant could not demonstrate an arguable appeal for stay purposes.
The trial court dismissed the applicant's suit with costs and later disallowed his application to set aside that dismissal. The court, following Western College v Oranga as adopted in Mbarak Said Ali, held that nothing positive was ordered to be done or restrained, so there is nothing capable of execution or stay except costs.
Competence of the application given the death of the 2nd respondent
The applicant was required to await substitution of the deceased 2nd respondent; orders cannot issue against a deceased person's estate without letters of administration.
The 1st respondent deponed that the 2nd respondent died on 19th December 2020, before the application was filed. The court held that the applicant ought to have awaited substitution, and that in any event the court cannot issue orders against a deceased person's estate absent letters of administration.
Whether the nugatory limb needed consideration
Having found that a negative order cannot be stayed, the nugatory aspect was immaterial.
Since the threshold requirement of a stayable positive order failed, the court did not proceed to analyse whether the intended appeal would be rendered nugatory, treating that inquiry as unnecessary.
Legal principles established
#- An order dismissing a suit is a negative order, not capable of being stayed on appeal; only positive orders requiring a party to do or refrain from doing something are stayable.
- To succeed under Rule 5(2)(b), an applicant must show an arguable appeal and that the appeal will be rendered nugatory absent a stay.
- A court cannot issue orders against a deceased person's estate in the absence of letters of administration; a party must await substitution of a deceased party before filing.
Court orders
#- 1.The application for stay of execution is dismissed with costs to the 1st respondent
- On appeal from
- Environment and Land Court of Kenya at Meru
- ELC Case No. 06 of 2020
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules 2010 (application under Rules 47(5), 45(2) and 41)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "M'ikiao v M’Kiambati & another", Case Analysis (2026). Civil Application E190 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1956/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.