Mbulo & another v Nyamwaya (Environment and Land Appeal E003 of 2023) [2026] KEELC 4664 (KLR)
The bottom line
#A Kenyan court dismissed an application to stay a judgment dismissing an appeal, ruling that a dismissal is a negative order that cannot be stayed.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Judgment of 30th September 2025 is capable of being stayed, under Order 42 Rule 6 of the Civil Procedure Rules
- 2.Whether the alternative prayer for setting aside or variation of the Judgment is available to the Applicants
- 3.Who should bear the costs of the application
Key legal issues
#Whether the dismissal judgment of 30th September 2025 is capable of being stayed under Order 42 Rule 6
It is not; the judgment dismissed the appeal and made no affirmative order, so it is a negative order incapable of being stayed save as to costs.
The judgment under attack did not direct any party to do or refrain from doing anything or pay any sum except costs. Relying on Western College of Arts and Applied Sciences v EP Oranga, the court held that a mere dismissal is a negative order incapable of execution and therefore of stay. Order 42 Rule 6(1) only contemplates setting aside orders of stay of positive orders; where the order appealed is itself negative, the Rule has nothing to bite on and the application is misconceived.
Whether the alternative prayer for setting aside or variation of the judgment is available
It is not; the Court is functus officio and, a Notice of Appeal having been lodged, jurisdiction over the subject matter has shifted to the Court of Appeal.
The court reasoned that once a Notice of Appeal is lodged in the proper registry, an intended appeal is pending and the trial court is deprived of jurisdiction to set aside or review its own judgment. Rule 2(2) of the Court of Appeal Rules defines 'appeal' to include an intended appeal, following Otieno, Ragot & Company Advocates v National Bank of Kenya Limited. A party must withdraw or conclude the appeal before seeking setting-aside orders.
Whether the conditions in Order 42 Rule 6(2) (substantial loss, delay, security) needed determination
They did not arise, since those conditions presuppose an order capable of being stayed and none exists here.
The court sequenced the issues so that if the threshold question of stayability was answered negatively, findings on substantial loss, absence of unreasonable delay and security would be unnecessary. It expressly declined to make findings on submissions addressed to conditions that do not arise.
Legal principles established
#- A negative order of dismissal is incapable of execution and consequently incapable of being stayed, save as to costs
- A court cannot set aside or vary its own final judgment under the guise of a stay application; having rendered final judgment it becomes functus officio
- Once a Notice of Appeal has been lodged, the subject matter moves to the Court of Appeal and the trial court is deprived of jurisdiction to review or set aside its own judgment
Court orders
#- 1.Prayers (b) and (c) of the Notice of Motion (stay of execution pending the application and pending the intended appeal) fail
- 2.The alternative prayer for setting aside or variation of the Judgment and decree of 30th September 2025 is declined
- 3.The costs of the application shall be borne by the Applicants, payable to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Articles 50(1) and 165(3)(e) of the Constitution; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 42 Rule 6 and Order 51 of the Civil Procedure Rules, 2010
Relief refused
#Stay of execution of the Judgment and decree of 30th September 2025 pending hearing and determination of the application and the intended appeal
The judgment sought to be stayed was a negative order (a dismissal) incapable of being stayed under Order 42 Rule 6
Setting aside or variation of the Judgment and decree of 30th September 2025
The Court is functus officio having rendered final judgment, and jurisdiction over the subject matter has moved to the Court of Appeal upon lodgement of the Notice of Appeal
Costs
Costs follow the event. The costs of this application shall be borne by the Applicants, payable to the Respondent.
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.
Such an order is negative, and a negative order is incapable of execution, and consequently incapable of being stayed, save as to costs.
Where the order under appeal is itself negative, following upon another negative order at first instance, Order 42 Rule 6 of Civil Procedure Rules 2010 has no positive order to bite on, and an application invoking it is misconceived.
Having rendered final judgment on the appeal before it, this Court became functus officio and cannot sit in review over its own determination in this manner.
There can be no place for review once an intention to appeal has been intimated by filing of a notice of appeal.
Costs follow the event. The costs of this application shall be borne by the Applicants, payable to the Respondent.
Issues in the judgment
#Internal date inconsistency: the application is dated 24th November 2025 and the Replying Affidavit 1st December 2025, yet the judgment recites that on 24th April 2026 the Court of Appeal granted leave to appeal out of time, implying the application predates the leave it purports to follow.
Internal inconsistency in the recital of the trial ruling: the court refers both to a decree dated 31st March 2016 and to the suit having been 'determined on merit on 2nd December 2015'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mbulo & another v Nyamwaya (Environment and Land Appeal E003 of 2023) [2026] KEELC 4664 (KLR)", Case Analysis (2026). ELCA E003 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4664/eng@2026-07-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.