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ELCDismissedNotice of Motion dated 21st January 2025 (arising from Nakuru Chief Magistrate ELC Case No E156 of 2021)· [2025] KEELC 4031 (KLR)

Capital Care Homes & Property Consultants Limited v Sabatia CEO Gillian Sabatia Foundation (NGO) (Environment and Land Appeal E001 of 2025) [2025] KEELC 4031 (KLR)

Environment and Land Court
21 May 2025
MOM. A. ODENY
1,456 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to stay a ruling that only dismissed an application with costs, because a dismissal cannot itself be 'executed' against you.

What this practically means

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Executive summary

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This ruling by the Environment and Land Court at Nakuru (M. A. Odeny, J) determines a Notice of Motion dated 21st January 2025 in which the Applicant sought a stay of execution of an ex-parte judgment delivered on 11th February 2022 in Nakuru Chief Magistrate ELC Case No E156 of 2021, together with the decree and all consequential orders, pending the Applicant's appeal. The application was supported by the affidavit of Edwin Njuguna, the Applicant's Estate Manager, who deponed that the Respondent was executing the decree despite the court having set aside the interlocutory judgment, and that the Applicant would suffer substantial loss if required to pay the decretal sum of Kshs 716,873, which the Respondent may be unable to refund. The Respondent opposed the application, contending the Applicant had not demonstrated substantial loss or willingness to furnish security. The court identified the test under Order 42 Rule 6(1) and (2): the application must be brought without unreasonable delay, the Applicant must show substantial loss, and must offer security. The court found the application filed without undue delay but observed that the ruling of 7th January 2025 merely dismissed the Applicant's application with costs - a negative order incapable of execution save as to costs, following Western College of Arts & Applied Sciences v Oranga. Since there was nothing to stay, the application did not meet the threshold and was dismissed with costs.

Key legal issues

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01

Whether the applicant met the Order 42 Rule 6 conditions for stay of execution

Holding

The application was dismissed; the applicant failed to establish a decree or order capable of execution

Reasoning

The court set out the three Order 42 Rule 6 conditions: no unreasonable delay, substantial loss, and security. While it found the application filed without undue delay, the ruling of 7th January 2025 merely dismissed the applicant's application with costs - a negative order incapable of execution. As there was nothing to stay, the stay conditions could not be satisfied and the application failed.

p. 4
02

Whether a negative order is capable of being stayed

Holding

A negative order incapable of execution cannot be stayed

Reasoning

Relying on Western College of Arts & Applied Sciences v Oranga, the court held that where a ruling merely dismisses an application with costs, without ordering any party to do or refrain from doing anything or to pay any sum, it is a negative order incapable of execution except as to costs, so there is nothing to stay.

p. 4

Legal principles established

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  • A negative order, such as dismissal with costs only, is incapable of execution save in respect of costs, and there is nothing to stay
  • An arguable appeal need not necessarily succeed but must raise serious questions of law and not be frivolous

Court orders

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  1. 1.The application does not meet the threshold for the grant of a stay of execution and is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)

Cases cited (14)

  • Butt vs Rent Restriction Tribunal
    Civil App No NAI 6 of 1979
  • Masisi Mwita vs Damaris Wanjiku Njeri
    [2016] eKLR
  • James Wangalwa & Another vs Agnes Naliaka Cheseto
    [2012] eKLR
  • Nicholas Stephen Okaka & Another vs Alfred Waga Wesonga
    [2022] eKLR
  • Sentrim Contracts Ltd vs Joseph Mutinda Menya
    [2016] eKLR
  • Arun C Sharma vs Ashana Raikundalia t/a Raikundalia & Co Advocates & 2 others
    [2014] eKLR
  • HGE vs SM
    [2020] eKLR
  • Kenya Power & Lighting Company Limited vs Esther Wanjiru Wokabi
    [2014] eKLR
  • Mbula vs Nzangani
    Civil Appeal No 150 of 2022
  • Gianfranco Manenthi & Another vs Africa Merchant Assuarance Co Ltd
    [2019]
  • Jaber Mohsen Ali & another v Priscillah Boit & another
    [2014]
  • Trust Bank Limited & Ano. v Investech Bank Limited & 3 Others
    Civil Application Nai.258 of 1999 (unreported)
  • Dennis Mogambi Mang'are v Attorney General & 3 Others
    Civil Application No. Nai 265 of 2011 (UR 175/2011)
  • Western College of Arts & Applied Sciences v Oranga & others
    [1976] KLR 63
On appeal from
Chief Magistrate's Court (ELC), Nakuru
ELC Case No E156 of 2021
Jurisdiction invoked
Order 42 Rule 6(1) and (2) 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, "Capital Care Homes & Property Consultants Limited v Sabatia CEO Gillian Sabatia Foundation (NGO) (Environment and Land Appeal E001 of 2025) [2025] KEELC 4031 (KLR)", Case Analysis (2025). Notice of Motion dated 21st January 2025 (arising from Nakuru Chief Magistrate ELC Case No E156 of 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4031/eng@2025-05-21

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