Nabwana v Makokha (Environment and Land Appeal E031 of 2025) [2026] KEELC 3820 (KLR)
The bottom line
#A Kenyan court refused to pause a striking-out order on appeal because there was nothing to execute except unquantified costs.
What this practically means
#Executive summary
#Key legal issues
#Whether the order of the trial court striking out the suit with costs is capable of being stayed pending appeal
The court found that only the order for costs was capable of execution; since no bill of costs had been taxed or amount adjudged, and no substantial loss was demonstrated, no stay could issue
The court observed that the trial magistrate struck out the suit and awarded costs but issued no order requiring any party to do or refrain from doing anything. Following Chege v Gachora, Cooperative Bank of Kenya Ltd v BIFU, Western College of Arts v Oranga and Jennifer Akinyi Osodo, such a negative order cannot be stayed. The only executable order was for costs, whose quantum was unascertained, and the applicant failed to show how payment of costs would render his appeal nugatory.
Whether the applicant's claim that respondents were demolishing his house justified a stay
Rejected, because no eviction order was issued in the respondents' favour and the correct remedy would have been an injunction pending appeal
The court noted from the pleadings that it was the applicant who had sought eviction against the respondent in the lower court. No eviction order issued in favour of the respondents, so there was no order on which a stay could hinge. Stay of execution and injunction pending appeal rest on different legal principles, and the applicant pursued the wrong remedy.
Legal principles established
#- Stay of execution cannot be ordered against a negative order; a dismissal of a suit with costs leaves nothing capable of execution other than costs
- Where a party seeks to stop threatened eviction/demolition pending appeal, the proper application is for injunction pending appeal, not stay of execution
Court orders
#- 1.The chamber summons application dated 5th January 2026 is dismissed with costs to the respondents
- On appeal from
- Magistrates' Court (Busia)
- Busia MCELC/E011 of 2025
- Jurisdiction invoked
- Order 42 rule 6(1) of the Civil Procedure Rules (stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nabwana v Makokha (Environment and Land Appeal E031 of 2025) [2026] KEELC 3820 (KLR)", Case Analysis (2026). Not stated in judgment (chamber summons dated 5th January 2026, arising from appeal against Busia MCELC/E011 of 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3820/eng@2026-06-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.