Cherere v Wandarwa & another (Environment & Land Case 18 of 2020) [2025] KEELC 282 (KLR)
The bottom line
#The court refused to pause the outcome of a dismissed land ownership case, ruling that a dismissal is a 'negative order' that cannot be stayed, and rejected the claimant's evidence of living on the land.
What this practically means
#Executive summary
#Key legal issues
#Whether the Applicant satisfied the conditions for stay of execution pending appeal under Order 42 Rule 6(2)
The application failed on all three conditions: unexplained 60-day delay, no proof of substantial loss/actual occupation, and no security offered
The Court measured the application against the Order 42 Rule 6(2) conditions. The application was filed about sixty days after judgment with no explanation for the delay despite a Notice of Appeal filed on 2nd August 2024. The Applicant's claim of occupation was unsupported by photographic or valuation evidence, so any interest was compensable by costs. No security for the Respondents' costs was offered as a sign of good faith.
Whether the dismissal judgment is capable of being stayed
A dismissal is a negative order incapable of stay, save for costs
Relying on Ndungu vs Mutua, Co-operative Bank of Kenya Ltd vs BIFU and Raymond M. Omboga vs Augustine Pyan Maranga, the Court held that the judgment dismissing the adverse possession and contract claims was a negative order, so there was nothing to execute except the costs order, and consequently nothing capable of being stayed.
Legal principles established
#- A dismissal order is a negative order incapable of being stayed, save in respect of costs
- Stay of execution pending appeal requires substantial loss, absence of unreasonable delay, and security for due performance under Order 42 Rule 6(2)
- Actual possession must be proved; possession is a matter of fact requiring some sufficient degree of physical occupation
Court orders
#- 1.The instant Application dated 18th September 2024 is dismissed entirely
- 2.Costs of the application to the Respondents, being the successful parties, pursuant to Section 27 of the Civil Procedure Act
- Jurisdiction invoked
- Order 40 Rules 1 to 4 as read together with Order 42 Rule 6 of the Civil Procedure Rules and Section 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Cherere v Wandarwa & another (Environment & Land Case 18 of 2020) [2025] KEELC 282 (KLR)", Case Analysis (2025). ELC Case (Murang'a) - post-judgment Notice of Motion dated 18th September 2024 (suit property LOC.Gakoigo/975). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/282/eng@2025-01-29
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.