Kipsirgoi Investments Ltd v Local Authorities Pension Trust Registered Trustees & another (Petition E033 of 2021) [2026] KEELC 4095 (KLR)
The bottom line
#A Karen residents' association failed to pause a road ruling because a dismissal is nothing the court can 'stay'.
What this practically means
#Executive summary
#Key legal issues
#Whether the judgment of 5th February, 2026 dismissing the petition is capable of execution and hence of stay
The judgment was a negative order incapable of execution; the stay of execution could not issue
The court found that although the Petitioner contended the judgment contained positive orders (permission to upgrade upon obtaining approvals and an award of costs), the findings on the easement upgrade formed part of the court's reasoning, not enforceable orders. The only executable aspect was costs, and the stay application was not directed at costs. The judgment therefore remained, in substance and effect, a negative order.
Whether the ELC, as a court of first instance, can grant an injunction pending appeal under Order 42 Rule 6(6)
It cannot; the power under Order 42 Rule 6(6) is exercisable only where the court sits in its appellate capacity
The court held that its power to grant injunctive relief pending appeal is anchored on Order 42 Rule 6(6) of the Civil Procedure Rules, but a plain reading shows such power is only exercisable in appellate capacity. Since the court was seized of the matter as a court of first instance, that jurisdiction was unavailable, following the persuasive authority of Hunkar Trading Company Limited & Another v Family Bank Limited.
Whether the conditions in Order 42 Rule 6(2) for stay of execution had been met
The question did not arise because there was no executable decree to stay
The court held that before considering whether the requirements under Order 42 Rule 6 were satisfied, it had to determine whether the judgment sought to be stayed was capable of execution. Having found the judgment dismissive in nature and imposing no obligation on any party, it was unnecessary to engage the substantive stay conditions; the application failed on this threshold ground.
Legal principles established
#- An order of stay can only issue where there exists a positive and enforceable decree or order capable of execution; a dismissal with no positive orders is a negative order incapable of stay, save perhaps as to costs.
- The power to grant an injunction pending appeal under Order 42 Rule 6(6) of the Civil Procedure Rules is exercisable only by a court sitting in its appellate capacity, not by a trial court.
- Findings in a judgment's reasoning do not amount to positive or enforceable orders directing any party to act or refrain from acting.
Court orders
#- 1.The application dated 26th February, 2026 is dismissed with costs
- Jurisdiction invoked
- Sections 3, 12, 13 and 16 of the Environment and Land Court Act; Sections 1A, 1B, 3 and 3A of the Civil Procedure Act; Order 22 Rule 22 and Order 42 Rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kipsirgoi Investments Ltd v Local Authorities Pension Trust Registered Trustees & another (Petition E033 of 2021) [2026] KEELC 4095 (KLR)", Case Analysis (2026). Milimani ELCPET No. E033 of 2021 (Notice of Motion dated 26th February, 2026). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4095/eng@2026-07-02
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.