Onyando & another v Nyangena & another (Environment and Land Appeal E013 of 2025) [2026] KEELC 852 (KLR)
The bottom line
#A Kenyan court refused to pause a ruling striking out a land suit because striking out orders nothing to be done, so there is nothing to stay.
What this practically means
#Executive summary
#Key legal issues
#Whether stay of execution pending appeal should issue where the order appealed against merely struck out the suit and counterclaim with each party bearing own costs
Stay refused; the order is a negative order incapable of execution, so there is nothing to stay
Order 42 rule 6(2) requires demonstration of substantial loss, absence of unreasonable delay and security. The court reasoned that the decree below did not order the parties to do or refrain from doing anything; execution could only lie in respect of costs. Following the Court of Appeal's reasoning in Jennifer Akinyi Osodo and Western College, a negative order cannot be stayed, and an order restoring possession is in substance an injunction pending appeal which must equally fail.
Whether the Appellants demonstrated substantial loss to warrant the equitable relief sought
No; without an executable decree the threshold of substantial loss on an order capable of execution was not met
Relying on Kenya Power & Lighting Co. Ltd v Kigaita Ngare Unduthu and Kenya Shell Limited v Benjamin Karuga Kibiru, the court held that it is virtually impossible for a stay application to succeed absent demonstration of substantial loss. Since the only decree was a negative order, the asserted loss from construction and eviction could not found stay jurisdiction over that decree.
Legal principles established
#- A negative order - one that does not order a party to do or refrain from doing anything - is incapable of execution and there is nothing to stay
- An order restoring a party to possession pending appeal is in substance an injunction pending appeal governed by the same principles as stay of execution pending appeal
- Substantial loss is the cornerstone of the jurisdiction to grant stay of execution pending appeal
Court orders
#- 1.Dismissal of the Notice of Motion dated 25th September 2025
- 2.Costs shall abide the outcome of the appeal
- On appeal from
- Chief Magistrate's Court at Nyamira
- Nyamira CM ELC No. 6 of 2021
- Jurisdiction invoked
- Appellate jurisdiction over the Chief Magistrate's Court; application brought under Order 42 rule 6(2) of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Onyando & another v Nyangena & another (Environment and Land Appeal E013 of 2025) [2026] KEELC 852 (KLR)", Case Analysis (2026). Notice of Motion dated 25th September 2025 in the appeal from Nyamira CM ELC No. 6 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/852/eng@2026-02-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.