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ELCDismissedNot stated in the judgment (Notice of Motion dated 12th February 2024)· [2025] KEELC 5659 (KLR)

Nderitu v Muruga & another (Environment and Land Appeal 6 of 2020) [2025] KEELC 5659 (KLR)

Environment and Land Court
31 July 2025
JOJ.O. Olola
1,258 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed a four-year-late attempt to stay a dismissal, confirming stay applications don't apply to negative orders.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Mombasa (J.O. Olola, J) determined a Notice of Motion dated 12th February 2024 in which Ibrahim Kingori Nderitu, the Appellant, sought orders restraining dealings in land parcel Mahiga/Kihome/273, custody of the title deed, and stay of execution of a judgment delivered on 24th January 2020 in Othaya SRM ELC Case No. 6 of 2019 pending appeal. The 1st Respondent, Elishiba Nyakirangi Muruga, opposed through Grounds of Opposition and a Replying Affidavit, contending the application was misconceived, an abuse of process, filed some four years late, and that she was in occupation of the suit land. In the subordinate court, the Appellant had sought a declaration that the 1st Respondent procured the title unlawfully and an order for transfer of the parcel to himself, but D.M. Ireri SRM dismissed the suit, each party bearing their own costs. Applying Order 42 Rule 6(2) of the Civil Procedure Rules, 2010, and the authorities of RWW v EKW and Co-operative Bank of Kenya Ltd v BIFU (Kenya), the court held that stay of execution applies only to positive orders setting out obligations to be performed; the judgment sought to be stayed was a negative order, being a bare dismissal requiring nothing of any party. The court further found the application was filed some four years after the decision, in breach of the requirement of no unreasonable delay. The motion was dismissed with costs to the 1st Respondent.

Key legal issues

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01

Whether stay of execution may issue over a negative order

Holding

No. A stay order presupposes a positive order capable of being delayed; a bare dismissal is a negative order that cannot be stayed.

Reasoning

Relying on Co-operative Bank of Kenya Ltd v BIFU (Kenya), the court held that stay of execution delays performance of positive obligations in a decree. The trial court's judgment merely dismissed the appellant's suit and required no party to do or refrain from doing anything, so there was nothing to stay. The application was misconceived.

p. 3
02

Whether the application was brought without unreasonable delay

Holding

No. It was filed about four years after the judgment of 24th January 2020, breaching Order 42 Rule 6(2).

Reasoning

Order 42 Rule 6(2) requires the application to be made without unreasonable delay. The judgment was delivered on 24th January 2020 and the motion was filed on 12th February 2024, some four years later. This inordinate delay alone doomed the application from the outset.

p. 3

Legal principles established

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  • Stay of execution pending appeal applies only to positive orders setting out obligations to be performed; it cannot issue in respect of a negative order such as a dismissal

Court orders

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  1. 1.The Motion dated 12th February 2024 is dismissed with costs to the 1st Respondent

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(2)

Cases cited (3)

  • RWW –vs- EKW
    (2019) eKLR
  • Co-operative Bank of Kenya Limited –vs- Banking Insurance & Finance Union (Kenya)
    (2015) eKLR
  • Mugenyi & Co. Advocates -vs- National Insurance Corporation
    Civil Appeal No. 13 of 1984
On appeal from
Othaya Senior Resident Magistrate's Court (ELC)
Othaya SRM ELC Case No. 6 of 2019
Jurisdiction invoked
Order 42 Rule 6(2) of the Civil Procedure Rules, 2010 (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, "Nderitu v Muruga & another (Environment and Land Appeal 6 of 2020) [2025] KEELC 5659 (KLR)", Case Analysis (2025). Not stated in the judgment (Notice of Motion dated 12th February 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/5659/eng@2025-07-31

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