Saleh & 2 others v National Land Commission & 8 others (Constitutional Petition 44 of 2020) [2026] KEELC 3276 (KLR)
The bottom line
#A Mombasa court refused to preserve disputed land pending appeal, confirming that once a judge delivers judgment, they cannot reopen the same issues.
What this practically means
#Executive summary
#Key legal issues
#Functus officio in respect of conservatory and status quo orders
Having rendered judgment and discharged the interim orders, the Court could not entertain a fresh application to preserve the same property
The judgment of 25th April 2025 had already delved into the issues of preservation of the suit property and vacated the status quo orders. A new application seeking the same relief would require the Court to revisit issues that formed the basis of its judgment, which it has no jurisdiction to do after delivering itself.
Stay of execution of a negative order
A dismissal produces a negative order incapable of being stayed; stay orders only serve positive obligations in a decree
The Court relied on the Co-operative Bank v BIFU authority, which holds that a stay presupposes a positive order. Since the Petition was dismissed in its entirety and nothing positive was decreed against the Petitioners, a stay of execution would serve no purpose.
Legal principles established
#- Conservatory orders bear a public-law connotation and are not linked to private-party issues such as irreparable harm or probability of success
- A stay of execution only lies in respect of a positive order; a negative order, such as dismissal of a suit, is incapable of being stayed
Court orders
#- 1.The Motion dated 29th April 2025 is dismissed with costs
- Jurisdiction invoked
- Inherent jurisdiction of the Environment and Land Court to grant conservatory orders and stay pending appeal (Court of Appeal Rules / Order 42 of the Civil Procedure Rules 2010 invoked by parties)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Saleh & 2 others v National Land Commission & 8 others (Constitutional Petition 44 of 2020) [2026] KEELC 3276 (KLR)", Case Analysis (2026). Petition No. 44 of 2020 (Notice of Motion dated 29th April 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3276/eng@2026-05-26
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.