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ELCDismissedNotice of Motion dated 5th December, 2024 (judicial review cause, judgment of 6th March, 2024)· [2025] KEELC 7709 (KLR)

Republic v Deputy County Commisioner, Makueni & 3 others; Maithya & another (Interested Parties); Matolo (Ex parte Applicant) (Environment and Land Judicial Review Case E021 of 2022) [2025] KEELC 7709 (KLR)

Environment and Land Court
6 November 2025
EOE. O. Obaga
1,708 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

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You cannot get a stay of execution for a judgment that merely dismisses your case—only the costs awarded against you can be stayed, and only with proof of real loss.

What this practically means

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Executive summary

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The Ex-parte Applicant, Robert Muli Matolo, moved the court by Notice of Motion dated 5th December 2024 under Order 42 Rule 6(1) and (2) of the Civil Procedure Rules seeking a stay of execution of a ruling delivered on 15th October 2024 and a certificate of taxation issued on 19th November 2024, whereby Kshs.308,325/= in costs was awarded to the Interested Parties following the dismissal of his judicial review proceedings on 6th March 2024. He asserted that he had filed Nairobi Court of Appeal Civil Application No. E484 of 2024 seeking extension of time to lodge an intended appeal against that judgment, that the appeal would be rendered nugatory absent a stay, that there was no inordinate delay, and that he was willing to abide by conditions. The Interested Parties opposed, contending that the dismissal was a negative order incapable of execution save as to costs, that there had been inordinate delay, and that no security had been offered. The court, applying Order 42 Rule 6 and the authorities of Kenya Shell Ltd v Kibiru, Kanwal Sarjit Singh Dhiman and Western College of Arts and Applied Sciences v Oranga, held that the dismissal of the judicial review case was a negative order; the only enforceable element was costs. Since the Applicant was appealing the dismissal and not the taxed costs, and there was no evidence the Interested Parties could not refund the costs, no substantial loss was shown. The application was dismissed with costs to the Interested Parties on 6th November 2025.

Key legal issues

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Whether the applicant demonstrated substantial loss and absence of unreasonable delay under Order 42 Rule 6

Holding

The application fails because the judgment being appealed is a negative order; the only enforceable element is costs, and payment of those costs would not cause substantial loss or render the intended appeal nugatory

Reasoning

The court found that the applicant was not appealing against the taxed costs but against the dismissal of his judicial review case. Following Kanwal Sarjit Singh Dhiman and Western College, a dismissal is a negative order incapable of execution except as to costs. Without evidence that the Interested Parties could not refund the costs, no substantial loss was demonstrated, so stay was refused.

p. 4

Legal principles established

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  • An order that merely dismisses a suit is a negative order incapable of execution save in respect of costs only

Court orders

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  1. 1.The application for stay of execution dated 5th December, 2024 was dismissed
  2. 2.Costs of the application awarded to the Interested Parties
Jurisdiction invoked
Order 42 Rule 6(1) and (2) of the Civil Procedure Rules, 2010

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, "Republic v Deputy County Commisioner, Makueni & 3 others; Maithya & another (Interested Parties); Matolo (Ex parte Applicant) (Environment and Land Judicial Review Case E021 of 2022) [2025] KEELC 7709 (KLR)", Case Analysis (2025). Notice of Motion dated 5th December, 2024 (judicial review cause, judgment of 6th March, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7709/eng@2025-11-06

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