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ELCDismissedNot stated in the judgment· [2025] KEELC 558 (KLR)
Republic v Chairperson Business Premises Rent Tribunal & another; Kuria t/a Mishku Communications Limited (Interested Party); Shah t/a Jaykay Enterprises Limited (Exparte Applicant) (Environment and Land Judicial Review Miscellaneous Application E011 of 2023) [2025] KEELC 558 (KLR)
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·~5 min to read original · ~4 min briefThe bottom line
#A Kenyan High Court confirmed you cannot get a stay of execution against a dismissal order — the only remedy is to appeal.
What this practically means
#Executive summary
#This ruling by the High Court at Nakuru (A.O. Ombwayo, J) determined the Ex parte Applicant's Notice of Motion dated 20th December, 2024 seeking a stay of execution of the judgment of 21st November, 2024, by which the court had dismissed the applicant's judicial review application, pending an intended appeal. The applicant, through Nitin Kumar Hansraj Shah, managing director of the landlord of Nakuru/Municipality Block 9/16, argued that the interested party was about to resume execution, having extracted a decree and caused Crater View Auctioneers to serve a proclamation of attachment, that substantial loss would ensue, that the appeal would be rendered nugatory, and that security had been furnished by way of a deposit at Diamond Trust Bank of Kshs. 1,972,918.34 with a willingness to deposit the balance. The interested party opposed through grounds of opposition, contending that the application sought to stay negative orders incapable of execution, was an abuse of process and brought in bad faith, and that security had only been partially furnished. The applicant's counsel relied on Wangalwa v Cheseto and Kennedy Otieno Odiyo v KenGen, and attacked the grounds of opposition as an unsworn affidavit. Framing the sole issue as whether the applicant was entitled to stay orders pending appeal, the court held that the dismissal of the judicial review application was a negative order incapable of execution, applying Gitundu v Wathuku and Kaushik Panchamatia v Prime Bank Limited. The application was dismissed with costs.
Key legal issues
#01
Whether the dismissal of a judicial review application is a negative order incapable of being stayed pending appeal
Holding
Yes. The dismissal of the judicial review application was a negative order incapable of execution and therefore no stay of execution could issue.
Reasoning
The court noted it was not in dispute that the applicant sought to stay a dismissal order of a judicial review application. Relying on Gitundu v Wathuku and Kaushik Panchamatia & others v Prime Bank Limited, it held that a negative order - one that does not direct any party to perform any task or which leaves nothing to execute - cannot be stayed. The applicant's remedy was to pursue the intended appeal.
p. 3
Legal principles established
#- Stay orders cannot issue in respect of negative orders where the court has not ordered any party to perform any task.
- A negative order is incapable of being stayed because there is nothing to stay.
Court orders
#- 1.The application dated 20th December, 2024 is dismissed with costs
- Jurisdiction invoked
- Inherent jurisdiction of the High Court to grant stay of execution pending appeal (order not tied to a specific constitutional or statutory provision in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Chairperson Business Premises Rent Tribunal & another; Kuria t/a Mishku Communications Limited (Interested Party); Shah t/a Jaykay Enterprises Limited (Exparte Applicant) (Environment and Land Judicial Review Miscellaneous Application E011 of 2023) [2025] KEELC 558 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/558/eng@2025-02-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.