Melly v Njaya (Environment and Land Appeal E027 of 2025) [2026] KEELC 499 (KLR)
The bottom line
#A Kenyan court ruled you cannot get a stay of execution against a judgment that dismissed your case, because there is nothing to enforce.
What this practically means
#Executive summary
#Key legal issues
#Whether stay of execution can issue against a judgment dismissing a suit
No. A dismissal is a negative order incapable of execution, save perhaps as to costs, and cannot be stayed.
Order 42 Rule 6 of the Civil Procedure Rules sets three conditions for stay: no unreasonable delay, substantial loss, and security. However, before considering those conditions, the court must ask whether the orders sought to be stayed are positive or negative. A dismissal orders no party to do, refrain from doing, or pay anything, so there is nothing to enforce or restrain; only costs could be executable. Considering the stay conditions would be an academic exercise.
Whether a temporary injunction pending appeal could issue where the respondent has already taken possession
No. The prayer was overtaken by events since the respondent had already assumed possession and occupation, so the court declined to consider the Giella conditions.
The dispute had already been heard and determined by the trial court, and the injunction sought was post-judgment where the parties' rights had been conclusively determined. The applicant's own affidavit acknowledged that the trial court allowed the respondent's application for security to enter the suit land. The prayer for an injunction restraining entry or invasion was therefore untenable and the court found no reason to delve into the merits of the three Giella elements.
Costs of the application
The respondent is entitled to costs, costs following the event under section 27 of the Civil Procedure Act.
The general rule is that costs follow the event unless the court is satisfied otherwise. Having found that the applicant failed to prove his claim to the required standard and that the application lacked merit, the court held that the respondent, having successfully defended the application, was entitled to the costs of defending it.
Legal principles established
#- No appeal operates as an automatic stay of execution; an applicant must demonstrate that the application was made without unreasonable delay, that substantial loss will result, and offer security.
- A dismissal of a suit is a negative order incapable of execution and therefore incapable of being stayed.
- Costs follow the event unless the court is satisfied otherwise, per the proviso to section 27 of the Civil Procedure Act.
Court orders
#- 1.The Notice of Motion Application dated 28th August, 2025 is dismissed with costs to the respondent
- On appeal from
- Trial court (subordinate court, not named in the judgment as provided)
- Jurisdiction invoked
- Appellate jurisdiction over appeals from the subordinate court; orders sought under Order 42 Rule 6 and Order 40 Rule 1 and 2 of the Civil Procedure Rules and section 13(7)(a) of the Environment and Land Court Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Melly v Njaya (Environment and Land Appeal E027 of 2025) [2026] KEELC 499 (KLR)", Case Analysis (2026). Not stated in the judgment as provided. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/499/eng@2026-02-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.