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ELCDismissedNot stated in ruling (arising from judgment/decree dated 9th May 2025; relates to ELC 85 of 2014)· [2025] KEELC 6228 (KLR)

Gatiba & 2 others (Suing as the Legal Administrators Ad Litem of Joseph Mwaura Thuo (Deceased)) v Kahenya & 2 others (Environment and Land Case 160 of 2012 & 85 of 2014 (Consolidated)) [2025] KEELC 6228 (KLR)

Environment and Land Court
25 September 2025
AOA.O. Ombwayo
1,334 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to stay a judgment dismissing a land suit, confirming dismissals are negative orders that 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 (A.O. Ombwayo, J) determined a Notice of Motion dated 20th May 2025 in which the Plaintiffs/Applicants, Dorothy Nyokabi Kimani and the 2nd Defendant in ELC 85 of 2014, sought a stay of execution of the judgment and decree dated 9th May 2025 pending an intended appeal to the Court of Appeal, together with costs. The application was supported by an affidavit of Dorothy Nyokabi Kimani, who deponed that a notice of appeal had been filed on 12th May 2025, that proceedings were being assembled, and that the Applicants, who were in possession of the suit parcel, risked eviction rendering the appeal nugatory. The Respondent opposed the application, contending that the suit had been dismissed and that a dismissal is a negative order incapable of execution, that the Applicants had not offered security for costs, and that the 2nd Defendant had never entered appearance or filed a defence in the suit. The court framed a single issue: whether stay of execution pending appeal should issue. Relying on Gitundu V Wathuku and Raymond M. Omboga V Austine Pyan Maranga, the court held that the dismissal of the plaintiff's case was a negative order incapable of execution and therefore incapable of stay, since there was no positive order which, if executed, would cause loss to the other party. The application was found without merit and dismissed with costs.

Key legal issues

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Whether stay of execution pending appeal can issue in respect of a judgment dismissing the plaintiff's suit

Holding

A dismissal is a negative order incapable of execution and therefore incapable of stay; the application was dismissed with costs

Reasoning

The court noted that the judgment of 9th May 2025 dismissed the plaintiff's case. Relying on Gitundu V Wathuku and Raymond M. Omboga V Austine Pyan Maranga, the court held that negative orders dismissing a suit or application are incapable of execution save perhaps for costs. Absent a positive order in favour of the Respondent capable of execution, there is nothing to stay, and the applicant stands in the same position as before coming to court.

p. 4

Legal principles established

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  • Stay of execution cannot issue in respect of negative orders such as an order of dismissal, which are incapable of execution
  • The court can only stay a positive order which, if executed, would result in loss to the other party

Court orders

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  1. 1.The Notice of Motion dated 20th May 2025 is dismissed
  2. 2.Costs of the application to the Respondent
Jurisdiction invoked
Inherent jurisdiction to order stay of execution pending appeal to the Court of Appeal (the application sought stay of execution of a decree pending intended 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, "Gatiba & 2 others (Suing as the Legal Administrators Ad Litem of Joseph Mwaura Thuo (Deceased)) v Kahenya & 2 others (Environment and Land Case 160 of 2012 & 85 of 2014 (Consolidated)) [2025] KEELC 6228 (KLR)", Case Analysis (2025). Not stated in ruling (arising from judgment/decree dated 9th May 2025; relates to ELC 85 of 2014). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6228/eng@2025-09-25

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