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ELCDismissedAppeal from Mombasa MCELC NO. E202 of 2023 (application in appeal; appeal number not stated)· [2025] KEELC 6205 (KLR)
Mbalanya v ABSA Bank Kenya Limited (Environment and Land Appeal E054 of 2024) [2025] KEELC 6205 (KLR)
High Court of Kenya (Environment and Land Court appellate jurisdiction)
25 September 2025
478 words in judgment
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·~2 min to read original · ~4 min briefThe bottom line
#Kenya's High Court ruled you cannot get a stay of execution against an order that merely strikes out your case, because there is nothing to enforce.
What this practically means
#Executive summary
#This ruling of the High Court at Mombasa (Y. M. Angima, Judge) determined a notice of motion dated 20 December 2024 in which the appellant, Noah Nambute Mbalanya, sought a stay of execution of the ruling of the trial court in Mombasa MCELC No. E202 of 2023 (Noah Nambute Mbalanya v Absa Bank Kenya Limited) pending appeal. By the ruling of 19 December 2024, the trial court found the appellant's suit sub judice and res judicata and struck out both the suit and his application for interim orders dated 15 November 2023. Aggrieved, the appellant filed a memorandum of appeal on 20 December 2024 together with the stay application, invoking Sections 1A, 1B, 65 and 95 of the Civil Procedure Act and Order 42 Rule 6 and Order 51 of the Civil Procedure Rules. The respondent, Absa Bank Kenya Limited, opposed through a replying affidavit sworn by Samuel Njuguna on 10 April 2025, contending that the court lacked jurisdiction to entertain the appeal, that the striking-out order was a negative order not capable of being stayed, and that the appellant had defaulted on the loan facility since 2018 and thus deserved no equitable relief. Directions were given for written submissions, but none were filed by either party. The court held that the impugned order was a negative order merely striking out the suit and application, with nothing capable of execution or stay, applying Western College of Arts and Applied Sciences v E. P Oranga & 3 Others [1976] KECA 15 (KLR). The application was dismissed with costs to the respondent.
Key legal issues
#01
Whether a stay of execution can issue in respect of an order striking out a suit
Holding
No. A striking-out order is a negative order; stay of execution lies only against orders capable of execution.
Reasoning
The court examined the trial court's ruling of 19.12.2024 and found that it merely struck out the appellant's suit and his application for interim orders. No positive order was made against the appellant that could be executed. Following Western College of Arts and Applied Sciences vs E. P Oranga & 3 Others, stay of execution does not lie against a negative order, so the application had no merit.
p. 2
Legal principles established
#- An order of stay of execution does not lie against a negative order such as an order striking out a suit, which is not capable of being executed.
Court orders
#- 1.The appellant's notice of motion dated 20.12.2024 seeking stay of execution pending appeal is dismissed
- 2.Costs of the application to the respondent
- On appeal from
- Mombasa Magistrate's Court (Environment and Land)
- Mombasa MCELC NO. E202 of 2023
- Jurisdiction invoked
- Sections 1A, 1B, 65 and 95 of the Civil Procedure Act (Cap 21), Order 42 Rule 6 and Order 51 of the Civil Procedure Rules (appeal from subordinate court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbalanya v ABSA Bank Kenya Limited (Environment and Land Appeal E054 of 2024) [2025] KEELC 6205 (KLR)", Case Analysis (2025). Appeal from Mombasa MCELC NO. E202 of 2023 (application in appeal; appeal number not stated). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6205/eng@2025-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.