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ELCDismissedNotice of Motion dated 13th December 2024 arising from Iten MCELC Case No. 25 of 2020· [2025] KEELC 1154 (KLR)

Truser & 10 others v Attorney General & 2 others (Environment and Land Appeal E018 of 2024) [2025] KEELC 1154 (KLR)

Environment and Land Court
5 March 2025
LWL. N. Waithaka
1,018 words in judgment
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The bottom line

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A Kenyan court refused to pause a judgment that simply dismissed a land suit, because a dismissal orders no one to do anything and cannot be stayed.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Iten determines a notice of motion dated 13th December 2024 by the appellants/applicants seeking stay of execution of a judgment of the Magistrates' Court at Iten (Iten MCELC Case No. 25 of 2020) delivered on 25th November 2024. In the lower court suit, the applicants had sought orders compelling the Land Registrar Elgeyo Marakwet County to issue them title deeds for land parcels 51, 98, 99, 100, 101, 102, 103 and 272, and a permanent injunction restraining the 3rd defendant from undertaking any adjudication process over those parcels. The trial magistrate, Hon. V. Karanja PM, dismissed the suit on the ground that the plaintiffs failed to prove their case on a balance of probabilities, finding that the suit parcels fell under Emsea/Chagach section rather than Lower Sego Section and that the respondents had followed the procedure under the Land Adjudication Act. The applicants appealed and moved for stay pending appeal. The application was unopposed. Justice L. N. Waithaka identified the sole issue as whether the applicants had made out a case for stay under Order 42 Rule 6(1) of the Civil Procedure Rules. Perusing the lower court's judgment, the court found that, other than costs, it issued no order requiring the applicants to do or refrain from doing anything. Relying on Chege v Gachora and Cooperative Bank of Kenya Limited v BIFU, the court held the trial court's order was negative in nature and incapable of forming the basis of a stay. The application was dismissed with no orders as to costs.

Key legal issues

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Whether stay of execution pending appeal can issue in respect of a negative order

Holding

Stay of execution cannot issue because the trial court's judgment was a negative order incapable of execution; only costs were awarded and no positive obligations were imposed

Reasoning

The court applied Order 42 Rule 6(1) conditions for stay: substantial loss, no unreasonable delay, and security. On perusal of the lower court's judgment, the court found that other than costs, no order requiring the applicants to do or refrain from doing anything was issued. Relying on Chege v Gachora and the Cooperative Bank principle, stay presupposes a positive order, which was absent. The application was accordingly dismissed.

p. 3

Legal principles established

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  • A negative order - one that merely dismisses a suit without imposing positive obligations - is incapable of forming the basis of an order of stay of execution pending appeal

Court orders

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  1. 1.The notice of motion dated 13th December 2024 seeking stay of execution pending appeal is dismissed
  2. 2.No orders as to costs (each party to bear their own costs)
On appeal from
Magistrates' Court at Iten (Iten MCELC Case No. 25 of 2020)
25 of 2020
Jurisdiction invoked
Order 42 Rule 6(1) of the Civil Procedure Rules (stay of execution pending appeal)

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, "Truser & 10 others v Attorney General & 2 others (Environment and Land Appeal E018 of 2024) [2025] KEELC 1154 (KLR)", Case Analysis (2025). Notice of Motion dated 13th December 2024 arising from Iten MCELC Case No. 25 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1154/eng@2025-03-05

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