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ELCDismissedSirisia PM ELC Appeal (High Court/ELC at Bungoma) arising from Sirisia Principal Magistrate Court ELC Case No. 18 of 2021· [2025] KEELC 921 (KLR)

Chemao v Maina (Environment and Land Appeal E036 of 2024) [2025] KEELC 921 (KLR)

Environment and Land Court
20 February 2025
ECE.C. Cherono
1,388 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Bungoma Environment and Land Court refused to pause execution because a ruling that merely dismisses your application is a negative order with nothing to stay.

What this practically means

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Executive summary

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This was a ruling by the Environment and Land Court at Bungoma (E.C. Cherono, ELC Judge) on a Notice of Motion dated 04/10/2024 in which the Applicant sought stay of execution of a ruling and order of 08/08/2024 and of the decree in Sirisia Principal Magistrate Court ELC Case No. 18 of 2021, pending the hearing and determination of his appeal against that ruling. The lower court had entered ex parte judgment against the Applicant on 19/06/2024, and his application dated 03/07/2024 to set aside, vary or review that judgment and to be allowed to file a defence was dismissed on 08/07/2024. The Applicant argued he faced substantial loss, including demolition of his house, and that his appeal was arguable and would be rendered nugatory; the Respondent opposed, contending the application was filed after 57 days of unexplained delay and that a dismissal order is a negative order incapable of execution. The court framed a single issue: whether the Applicant had established the principles for stay of execution. It restated the purpose of stay as preservation of the subject matter so the appeal is not rendered nugatory, but found that the impugned ruling was a dismissal ordering no party to do or refrain from anything - a negative order incapable of execution and therefore nothing to stay. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Whether stay of execution pending appeal should issue

Holding

The application fails because the order sought to be stayed (dismissal of the Applicant's application to set aside the ex parte judgment) is a negative order incapable of execution; there is nothing to stay.

Reasoning

The court examined the record and found the impugned ruling merely dismissed the Applicant's application dated 03/07/2024, ordering no party to do or refrain from doing anything. Relying on Western College v Oranga and Raymond M. Omboga v Austine Pyan Maranga, it held that only positive orders capable of execution can be stayed; the Applicant simply remains in the position he was in before coming to court, so substantial loss and nugatory-appeal considerations do not arise.

p. 3

Legal principles established

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  • The purpose of a stay of execution pending appeal is to preserve the subject matter of the appeal so that the appeal, if successful, is not rendered nugatory
  • A dismissal order is a negative order incapable of execution and thus incapable of being stayed

Court orders

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  1. 1.The Notice of Motion dated 04/10/2024 seeking stay of execution of the ruling and order of 08/08/2024 and the decree in Sirisia PM ELC Case No. 18 of 2021 is dismissed
  2. 2.Costs of the application to the Respondent

Authorities

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Legislation

  • Civil Procedure ActSections 1, 1A, 3A, 3B, 63(e)
  • Civil Procedure Rules, 2010Order 42 Rule 6(1), 6(2)(a), 6(2)(b), 6(6); Order 51 Rule 1

Cases cited (8)

  • NTSA vs. Samper Tours Travel and Henry & 4 Others
    Civil Appeal No. E080 of 2021 (2022) KEELRC 133
  • County Government of Vihiga Cause 76 of 2021
    (2022) KEELRC 133
  • James Wangalwa & Another vs. Agnes Nalika Chesto
    (2012) eKLR
  • Kanwal Sarjit Sighn Dhimanzi vs. Kashavji Juvrat Shan
    (2008) eKLR
  • Oliver Collins Wanyama vs. Engineers Board of Kenya
    (2019) eKLR
  • RWW vs EKW
    (2019) eKLR
  • Western College of Arts and Applied Sciences v EP Oranga & 3 others
    [1976] eKLR
  • Raymond M. Omboga v Austine Pyan Maranga
    Kisii HCCA No 15 of 2010
On appeal from
Sirisia Principal Magistrate's Court (ELC)
ELC Case No. 18 of 2021
Jurisdiction invoked
Sections 1, 1A, 3A, 3B and 63(e) of the Civil Procedure Act and Orders 42 Rule 6(6) and 51 Rule 1 of the Civil Procedure Rules, 2010

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, "Chemao v Maina (Environment and Land Appeal E036 of 2024) [2025] KEELC 921 (KLR)", Case Analysis (2025). Sirisia PM ELC Appeal (High Court/ELC at Bungoma) arising from Sirisia Principal Magistrate Court ELC Case No. 18 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/921/eng@2025-02-20

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