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ELCDismissedELC.APPEAL E045 OF 2025· [2026] KEELC 721 (KLR)

Kigen & another v Yator (Environment and Land Appeal E045 of 2025) [2026] KEELC 721 (KLR)

Environment and Land Court
12 February 2026
EWEmmanuel M. Washe
2,603 words in judgment
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The bottom line

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Kenya's Environment and Land Court refused to stay a dismissal ruling, confirming that negative orders cannot be stayed pending appeal.

What this practically means

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Executive summary

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The 1st and 2nd Appellants (Applicants) moved the Environment and Land Court at Eldoret by Notice of Motion dated 19th August 2025 seeking a stay of execution of the Ruling delivered on 12th August 2025 in Eldoret Chief Magistrates' Court ELC Case No. 212 of 2018, pending hearing of their application and of their intended appeal to this Court. The ruling under appeal had dismissed their application dated 15th May 2025 seeking review and setting aside of the Trial Court's ruling of 25th November 2024, which had set aside a judgment pronounced on 24th February 2022. The Respondent opposed, contending the application was res judicata in light of two prior applications in the Trial Court (dated 20.01.2025 and 15.05.2025), was frivolous and an abuse of process, and that no loss or injury was demonstrated. The court framed four issues: res judicata, the principles for stay pending appeal, merit, and costs. On res judicata, the court held that the previous applications concerned different rulings and different reliefs and therefore were not the same issue as the present application, rejecting the Respondent's plea. However, on the stay question, the court found that the ruling of 12.08.2025 was a negative order - a mere dismissal of an application incapable of execution - and following Kenya Commercial Bank v Tamarind Meadows and the authorities cited therein, such an order cannot be stayed. The application was therefore found unmerited and dismissed with costs to the Respondent.

Key legal issues

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01

Res judicata

Holding

The application was not res judicata the previous applications dated 20.01.2025 and 15.05.2025 because those applications did not deal with the same issue as the present one

Reasoning

Applying the four ingredients in Section 7 of the Civil Procedure Act, the court compared the previous applications with the present one. The earlier stay application related to the Ruling of 24.11.2024, and the review application sought review of that ruling and a stay pending succession proceedings. Neither sought stay of the 12.08.2025 ruling for purposes of the appeal to this Court, so the subject matters differed.

p. 8
02

Stay of execution of a negative order

Holding

The Ruling of 12.08.2025 was a negative order (dismissal of an application) incapable of execution and therefore incapable of being stayed

Reasoning

Stay pending appeal under Order 40 Rule 6 aims to prevent substantial loss and ensure the appeal is not rendered nugatory. The ruling under appeal merely dismissed the applicants' application, ordering no party to do or refrain from anything. Following KCB v Tamarind Meadows and the authorities cited therein, such a negative order cannot be stayed.

p. 9

Legal principles established

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  • A negative order, being one incapable of execution, cannot be stayed
  • Res judicata requires identity of parties, subject matter, a competent court, and a final determination on merit

Court orders

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  1. 1.The Notice of Motion application dated 19th August, 2025 lacks merit and is hereby dismissed
  2. 2.The appellants shall bear the costs of the present application

Authorities

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Legislation

  • Civil Procedure Act, Cap 21Section 7
  • Civil Procedure Rules, 2010Order 40 Rule 6

Cases cited (4)

  • Kenya Commercial Bank Limited versus Tamarind Meadows Limited & 7 Others
    (2016) eKLR
  • Kanwal Sarjit Singh Dhiman vs Keshavji Jivraj Shah
    (2008) eKLR
  • Western College of Arts & Applied Sciences vs. Oranga & Others
    [1976] KLR 63
  • Raymond M Omboga v Austine Pyan Maranga
On appeal from
Chief Magistrates' Court at Eldoret (ELC No. 212 of 2018)
ELDORET MCELC CASE NO. 212 OF 2018
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court over appeals from subordinate courts, with the stay application brought under Order 40 Rule 6 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, "Kigen & another v Yator (Environment and Land Appeal E045 of 2025) [2026] KEELC 721 (KLR)", Case Analysis (2026). ELC.APPEAL E045 OF 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/721/eng@2026-02-12

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