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ELCDismissedMachakos ELC Appeal (notice of motion dated 25/11/2024)

Wambua (Suing as the Personal Representative of the Estate of Samuel Muindi) & another v Katheka Kai Farmers Co-operative Society Ltd & 2 others (Environment and Land Appeal E069 of 2024) [2025] KEELC 1476 (KLR)

Environment and Land Court
25 March 2025
AKA. Y. Koross
1,466 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to pause a dismissed land case because a bare dismissal creates nothing to enforce or stop.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Machakos, delivered by Hon. A. Y. Koross, Judge, on 25 March 2025, on a notice of motion dated 25 November 2024 filed by the appellants. The appellants, whose land suit in Machakos CM ELC No. 40 of 2023 had been dismissed on a preliminary objection by a ruling of 25 October 2024, sought a stay of execution of that judgment and decree pending appeal, supervision of compliance by the OCS Konza Police Station, and costs. They asserted that the respondents had fenced the suit property and were developing it, that their appeal dated 15 November 2024 had reasonable chances of success, and that continued developments would render the appeal an academic exercise and cause them irreparable loss. The 1st respondent did not participate; the 2nd and 3rd respondents opposed, arguing that the motion failed to meet the stay principles, that substantial loss had not been demonstrated and no security offered. The court identified a single issue: whether the motion was merited. It set out the Order 42 Rule 6(2) conditions and the wider appellate discretion, drawing on Teacher Service Commission v Mutisya. It then held that, because the lower court had merely dismissed the appellants' suit save on costs, it had issued only a negative order with nothing to be executed or stayed, adopting the Western College v Oranga principle as approved in Kaushik Panchamatia v Prime Bank. The motion was dismissed with costs to the 2nd and 3rd respondents, but the appeal was admitted, the appellants were directed to file the record of appeal within 30 days, a calling letter was to issue, and the matter was set for mention before the Deputy Registrar on 8 May 2025.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the notice of motion dated 25/11/2024 seeking stay of execution pending appeal is merited

Key legal issues

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Whether a stay of execution can be granted where the decree appealed from is a negative order

Holding

No - where the lower court merely dismissed the suit save on costs, there is nothing to be executed or capable of being stayed, and the stay principles need not be applied

Reasoning

The court distinguished between a positive order (compelling a party to do or refrain from doing something or to pay a sum) and a negative order (a bare dismissal of a suit). Relying on Western College of Arts and Applied Sciences v Oranga, adopted with approval in Kaushik Panchamatia v Prime Bank, it held that execution can only lie in respect of costs, so the appeal would not be rendered nugatory by continued developments, and the stay application was unmerited.

p. 3
02

The principles governing stay of execution pending appeal

Holding

The Order 42 Rule 6(2) conditions apply - substantial loss, no unreasonable delay, and security - supplemented by wider judicious discretion where the court sits as an appellate court

Reasoning

The court set out Order 42 Rule 6(2) of the Civil Procedure Rules and, drawing on Teacher Service Commission v Mutisya, summarised the requirements of an arguable appeal and whether the appeal would be rendered nugatory. It stressed that the purpose of a stay is to preserve the substratum of the case so a successful appeal is not rendered nugatory. However, it found these tests unnecessary to apply fully because the lower court's order was negative.

p. 3

Legal principles established

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  • A stay of execution cannot issue in respect of a negative order - a judgment dismissing a suit with no positive obligations leaves nothing to be executed or stayed

Court orders

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  1. 1.The notice of motion dated 25/11/2024 is dismissed with costs to the 2nd and 3rd respondents
  2. 2.The appellants shall file and serve the record of appeal within 30 days from the date of the ruling
  3. 3.The appeal is admitted
  4. 4.Calling letter to issue to the lower court
  5. 5.Mention before the Deputy Registrar for further directions on 8.05.2025

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AK
majority

Wrote the judgment

On appeal from
Chief Magistrate's Court, Machakos
Machakos CM ELC No. 40 of 2023
Jurisdiction invoked
Appellate jurisdiction over an appeal from the magistrates' court; Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

Relief refused

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Stay of execution of the judgment and decree in Machakos CM ELC No. 40 of 2023 pending appeal

The lower court merely dismissed the appellants' suit except on costs, issuing a negative order; there is nothing to be executed or stayed

p. 3

Order that the OCS Konza Police Station supervise compliance with the orders of the court

Fell with the dismissal of the motion

Costs

The notice of motion dated 25/11/2024 is dismissed with costs to the 2nd and 3rd respondents

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

That the notice of motion dated 25/11/2024 is hereby dismissed with costs to the 2nd and 3rd respondents.
p. 4Final orders - dismissal of the motion
As a result, there is nothing to be executed or capable of being stayed.
p. 3Negative order doctrine - no stay lies on a bare dismissal
The purpose of a stay of execution is to preserve the substratum of the case so That the rights of the appellants, who are exercising their undoubted right of appeal, are safeguarded and the appeal, if successful, is not rendered nugatory.
p. 3Purpose of stay of execution pending appeal
The High Court has not ordered any of the parties to do anything or to refrain from doing anything or to pay any sum. There is nothing arising out of the High Court Judgment for this court in an application for stay to enforce or restrain by injunction.
p. 4Western College principle adopted

Issues in the judgment

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minor

The case name of Western College is misprinted as 'Western College Farts and Applied Sciences' instead of 'Western College of Arts and Applied Sciences'

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Wambua (Suing as the Personal Representative of the Estate of Samuel Muindi) & another v Katheka Kai Farmers Co-operative Society Ltd & 2 others (Environment and Land Appeal E069 of 2024) [2025] KEELC 1476 (KLR)", Case Analysis (2025). Machakos ELC Appeal (notice of motion dated 25/11/2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/1476/eng@2025-03-25

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