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ELCDismissedKilungu MCELC No. E005/2023 (Appeal)· [2025] KEELC 7075 (KLR)

Kimundi v Kamuya (Environment and Land Appeal E016 of 2024) [2025] KEELC 7075 (KLR)

Environment and Land Court
16 October 2025
EOE. O. Obaga
1,623 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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Kenya's Environment and Land Court ruled you cannot appeal-stay a judgment that simply dismissed your suit — only costs orders remain executable.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court on a Notice of Motion dated 7th January 2025 in which the Appellant/Applicant, whose suit in Kilungu MCELC No. E005/2023 was dismissed with costs on 12th September 2024 by Hon. Felix Makoyo, sought a stay of execution of that judgment and all consequential orders including execution for costs, plus a temporary injunction restraining the Respondent from entering, interfering with or dealing with the Applicant's portion of the suit premises pending appeal. The application was supported by an affidavit of Vincent M. Muia Advocate, who complained that the Respondent had instructed auctioneers to execute for costs, sending proclamation and attachment warrants to the Applicant's son in Nairobi, and that the auctioneers' charges were excessive and untaxed. The Respondent opposed, contending that the draft decree had been sent for approval, that the conditions in Order 42 Rule 6(2) - substantial loss and security - had not been met, and that the application was a delaying tactic. The court identified a single issue: whether the Applicant had demonstrated merit in the application for stay. Relying on Order 42 Rule 6(1) and (2) and the Court of Appeal authorities on negative orders (Kenya Shell v Kibiru, Dhiman v Shah, Western College v Oranga, and Registered Trustees Kenya Railways v Millimo), the court held that the dismissal of the suit produced a negative order requiring no party to do or refrain from doing anything save payment of costs, and such an order is incapable of being stayed. Execution for costs was no ground for stay, and the Applicant had not shown he could not recover costs paid. The application was dismissed with costs to the Respondent.

Key legal issues

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01

Whether stay of execution pending appeal can issue in respect of a judgment that merely dismissed a suit

Holding

No - a dismissal of a suit yields a negative order which is incapable of execution except for costs, and therefore cannot be stayed

Reasoning

Applying Order 42 Rule 6(1) and (2), the court noted the lower court dismissed the plaintiff's suit with costs, requiring no party to do or refrain from doing anything save payment of costs. Following Kenya Shell Ltd v Kibiru, Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah, Western College v Oranga and Registered Trustees, Kenya Railways Staff Retirement Benefits Scheme v Millimo, the court held negative orders cannot be stayed and payment of costs does not demonstrate substantial loss.

p. 3

Legal principles established

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  • A negative order dismissing a suit is incapable of execution save in respect of costs, and is incapable of being stayed

Court orders

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  1. 1.The Notice of Motion dated 7th January, 2025 seeking stay of execution of the judgment of 12th September, 2024 is dismissed
  2. 2.Costs of the application awarded to the Respondent
On appeal from
Principal Magistrates Court Kilungu
Kilungu MCELC No. E005/2023
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010 (appellate jurisdiction over appeals from the Principal Magistrates' Court)

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, "Kimundi v Kamuya (Environment and Land Appeal E016 of 2024) [2025] KEELC 7075 (KLR)", Case Analysis (2025). Kilungu MCELC No. E005/2023 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7075/eng@2025-10-16

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