Sava v Matano & another (Environment and Land Case E011 of 2025) [2026] KEELC 4609 (KLR)
The bottom line
#A Kwale court ruled it can still grant a stay of execution even after striking out a case for lack of jurisdiction, provided the appellant deposits security.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether this Court became functus officio upon delivering its ruling dated 17th December, 2025 declaring that it lacked jurisdiction over the dispute
- 2.Whether this Court retained residual or ancillary jurisdiction to entertain and determine the Plaintiff's Notice of Motion application dated 3rd February, 2026 seeking stay pending appeal
- 3.Whether the ruling delivered on 17th December, 2025 constituted a negative order incapable of being stayed pending appeal
- 4.Whether the Plaintiff/Applicant satisfied the legal threshold for the grant of an order of stay of execution pending appeal under Order 42 Rule 6 of the Civil Procedure Rules, 2010
- 5.Whether the Defendants'/Applicants' Notice of Motion application dated 5th February, 2026 seeking to set aside the interim stay orders has merit
- 6.Who should bear the costs of the two applications
Key legal issues
#Whether the Court became functus officio after its 17th December 2025 ruling declining jurisdiction
No. The functus officio doctrine prohibits merit-based re-engagement with a decided matter but does not bar ancillary applications such as stay pending appeal; the Court retains residual jurisdiction over procedural and consequential matters arising from its ruling.
The Court drew on Supreme Court and Court of Appeal authorities (Raila Odinga, Telkom Kenya, Jersey Evening Post) establishing that the doctrine protects finality of decisions and prohibits only merit-based reconsideration. It reasoned that a contrary construction would render Order 42 Rule 6 nugatory, since every court would become functus upon delivering any decision and could never entertain a stay application. The Plaintiff's application accepted the ruling as it stood and merely sought to suspend its execution.
Whether the Court retained jurisdiction to grant stay pending appeal
Yes. Order 42 Rule 6 of the Civil Procedure Rules, 2010 and Section 3A of the Civil Procedure Act confer ancillary jurisdiction on the court appealed from to grant stay pending appeal, notwithstanding the earlier finding of want of original jurisdiction over the substantive dispute.
The Court held that the stay jurisdiction is neither original nor appellate but ancillary, existing solely to preserve the subject matter pending appeal. It invoked Articles 48, 50(1) and 159(2)(d) of the Constitution, holding that denying interim preservation from the court whose decision is under appeal would undermine the constitutional right of appeal and access to justice.
Whether the ruling of 17th December 2025 was a negative order incapable of stay
The substantive order striking out the suit was a negative order incapable of execution, but the consequential costs order was a positive, executable order capable of being stayed; the auctioneers' distress proceedings were a separate legal process founded on the landlords' contractual rights, not execution of the Court's decree.
Applying Western College (WECA) v Oranga and its progeny, the Court held that striking out the suit imposed no positive obligation capable of execution except as to costs. However, the costs order under Section 27 of the Civil Procedure Act forms part of the decree and becomes executable upon taxation, justifying stay. The distress for rent was predicated on the tenancy, not the decree.
Whether the Plaintiff satisfied the Order 42 Rule 6(2) conditions for stay
Yes. The Court found substantial loss demonstrated (threat of auction of business tools, eviction and demolition of home and business premises operated for over two decades, not compensable in damages), no unreasonable delay (application filed approximately thirteen days after the ruling was availed on the CTS), and security fixed at Kshs. 250,000/= in a joint escrow account within 30 days.
Substantial loss is a qualitative concept; the enforcement machinery was already in motion, with goods proclaimed and demolition threatened. The Notice of Appeal predated the distress proceedings, negating the allegation that the stay application was merely reactive. On security, the Court struck a balance between the disputed arrears figures, adopting a conservative amount that protects the Defendants without denying the Plaintiff access to appellate justice under Article 48.
Whether the Defendants' application to set aside the interim stay orders had merit
No. Having found the stay application meritorious, the Court found no legal basis for vacating the interim orders merely because they were initially granted ex parte; the application dated 5th February 2026 was dismissed.
The Court reasoned that interim orders are temporary and preservatory, intended to maintain the prevailing position pending inter partes hearing, and do not determine substantive rights. Applying Mbogo v Shah, it held that a court revisiting its own discretionary orders should not interfere absent demonstration of wrong principles, misapprehension of facts, or plainly wrong decisions.
Costs of the two applications
Costs of the Defendants' application were awarded to the Plaintiff, but each party was otherwise ordered to bear its own costs, the Court exercising discretion under Section 27 of the Civil Procedure Act given that the issues raised were bona fide questions of law.
The Court noted that costs follow the event but held that the questions concerning functus officio, residual jurisdiction and Order 42 Rule 6 were genuinely arguable and deserving of determination, and ordering costs against the Defendants on all counts would discourage litigants from approaching the court on bona fide questions of law.
Legal principles established
#- The functus officio doctrine bars merit-based reconsideration of a decided matter but does not strip a court of residual jurisdiction to entertain ancillary or consequential applications, such as stay pending appeal, that do not disturb the substance of its decision
- The jurisdiction to grant stay of execution pending appeal under Order 42 Rule 6 is neither original nor appellate; it is ancillary to the appellate process and survives the court's earlier declaration of want of original jurisdiction
- An order striking out or dismissing a suit is a negative order incapable of execution except as to the consequential order for costs, which is a positive and executable order capable of being stayed
- A party who files an application before a court it alleges is functus officio submits to that court's jurisdiction and is estopped from denying it in respect of the rival application
Court orders
#- 1.The Notice of Motion application dated 5th February, 2026 by the Defendants dismissed with costs to the Plaintiff/Respondent
- 2.The Notice of Motion application dated 3rd February, 2026 by the Plaintiff allowed on terms
- 3.Stay of execution of the ruling delivered on 17th December, 2025, including the consequential costs order, pending hearing and final determination of Mombasa Court of Appeal Civil Appeal No. E044 of 2026 or further order
- 4.As a condition of the stay, the Plaintiff to deposit Kenya Shillings Two Hundred and Fifty Thousand (Kshs. 250,000/=) as security in an interest-earning joint Escrow bank account in the names of Messrs. Mwaniki Gitahi & Partners Advocates and Messrs. Mungai Kamau & Co. Advocates within thirty (30) days of the ruling, to abide the outcome of the appeal
- 5.In default of deposit of the security within the specified period, the stay of execution to stand discharged automatically and without further order of the Court
- 6.Pending deposit of the security and pending determination of the appeal, all distress proceedings, eviction and demolition actions in respect of Plot No. Kwale/Ukunda/3377 directly connected to the enforcement of the ruling of 17th December, 2025 stayed
- 7.The Plaintiff to continue paying current ground rent monthly as and when it falls due, and to deposit any disputed rent arrears in the Magistrate's Court proceedings in MCCC No. E032 of 2026 or into court, pending determination of the amount lawfully due
- 8.Each party to bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Environment and Land Court Act, No. 19 of 2011; Sections 3A and 99 of the Civil Procedure Act, Cap. 21; Order 42 Rule 6 of the Civil Procedure Rules, 2010
Relief refused
#Costs of the Plaintiff's application to be provided in the cause as sought by the Plaintiff, and costs of the Defendants' application to the Defendants as sought
The Court held the issues raised were genuinely arguable questions of law and exercised its discretion to order each party to bear its own costs, notwithstanding finding for the Plaintiff
Security in the sum of Kenya Shillings 856,000/= demanded by the Defendants
The quantum of rent arrears was disputed and the Court fixed security at a conservative Kshs. 250,000/= to balance the parties' interests without shutting the Plaintiff out of the appellate process
Costs
Sub-para (a): costs of the Defendants' application dated 5th February, 2026 to the Plaintiff/Respondent; Sub-para (c): each party to bear its own costs (of the Plaintiff's application and generally) - 'Each party to bear its own costs.'
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
THAT the Notice of Motion application dated 5th February, 2026 by the Defendants be and is hereby dismissed with costs to the Plaintifi/Respondent.
There shall be a stay of execution of the ruling delivered by this Court on 17th December, 2025, including the consequential costs order made therein, pending the hearing and final determination of Mombasa Court of Appeal Civil Appeal No. E044 of 2026 or further order of this Court.
In the event that the Plaintifi/Applicant fails to deposit the said security within the period specified in Order (b) (ii) above, the stay of execution shall stand discharged automatically and without further order of this Court.
Each party to bear its own costs.
Based on the foregoing, I discern, therefore, that the doctrine of functus oficio does not bar this Court from entertaining the Plaintifi's application for stay of execution pending appeal.
The jurisdiction donated by Order 42 Rule 6 is neither original nor appellate. It is ancillary to the appellate process and exists for the sole purpose of preserving the subject matter pending determination of the appeal.
Hence, I hold that while the dismissal of the suit constituted a negative order, the consequential order as to costs is a positive and executable order capable of being stayed in appropriate circumstances.
Having submitted to the jurisdiction of this Court for the purpose of their own application, the Defendants are estopped from denying its jurisdiction in respect of the Plaintifi's application.
Issues in the judgment
#The judgment gives inconsistent dates for delivery of the ruling sought to be stayed - 17th December, 2025 in most passages but 16th December, 2025 in others
Conflicting dates for the Notice of Appeal are given - the affidavit summary says 19th December, 2025 while the Court's analysis says 9th December, 2025
Conflicting dates for when the ruling was uploaded on the Court Tracking System - 5th January, 2026 in the Defendants' Replying Affidavit and 21st January, 2026 in the Supporting Affidavit and the Court's own analysis
The claim that the earlier ruling 'dismissed' the suit conflicts with the Court's own description that it 'struck out' the suit
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sava v Matano & another (Environment and Land Case E011 of 2025) [2026] KEELC 4609 (KLR)", Case Analysis (2026). ELC No. E011 of 2025 (Kwale). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4609/eng@2026-07-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.