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ELCDismissedNot stated in the extract (suit over land parcel No. Nyeri/Endarasha/1559)· [2026] KEELC 5326 (KLR)

Mwangi & another v Muiga (Environment and Land Case E016 of 2024) [2026] KEELC 5326 (KLR)

Environment and Land Court
12 August 2026
EME. K. MAKORI
1,029 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to stay a dismissal, confirming that you cannot stay a negative order because there is nothing to execute.

What this practically means

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Executive summary

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The Applicants, who had sued the Respondent for eviction from land parcel No. Nyeri/Endarasha/1559, brought a Notice of Motion dated 13th October 2025 seeking a stay of execution pending an intended appeal to the Court of Appeal. Background: their suit was struck out with costs by a ruling dated 23rd May 2025 (the Respondent having characterised the dispute as a boundary dispute); their application for review of that ruling, filed on 26th May 2025, was dismissed with costs by Mugo Kamau J on 9th October 2025. The Respondent opposed the application in a replying affidavit sworn on 23rd January 2026, contending there was nothing to stay, that the suit was dismissed for want of jurisdiction as a boundary dispute, and that the court was functus officio and could not sit on appeal over its own decision. E. K. Makori J held that the Applicants had not specified which order they sought to stay, and that the only candidate was the 9th October 2025 dismissal of their review application. Relying on Jennifer Akinyi Osodo v Boniface Okumu Osodo, which in turn applied Western College of Arts and Applied Sciences v EP Oranga and Raymond M. Omboga, the court held that a dismissal is a negative order incapable of execution and therefore incapable of being stayed; only costs are executable. The application was dismissed with costs on 12th August 2026.

Key legal issues

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01

Whether stay of execution can issue in respect of a dismissal order

Holding

A dismissal order is a negative order incapable of execution; there is nothing to stay

Reasoning

The court adopted the Court of Appeal's reasoning in Jennifer Akinyi Osodo, which relied on Western College of Arts and Applied Sciences v EP Oranga and Raymond M. Omboga. A dismissal leaves the parties as they were before the suit; the only executable element is costs. Since the Applicants did not specify the order they sought to stay and the only candidate (the 9th October 2025 dismissal of their review application) is negative in nature, the conditions for stay under Order 42 cannot be satisfied.

p. 6
02

Whether the Applicants identified the order to be stayed

Holding

The Applicants did not specify which order they sought to stay; the court assumed it was the ruling of 9th October 2025 dismissing their review application

Reasoning

The court observed that the Applicants sought a stay of execution without identifying the order. From the record, the court could only assume the target was the 9th October 2025 ruling by Mugo Kamau J dismissing the 26th May 2025 review application with costs. That order contains no positive command capable of execution, so no stay can issue.

p. 4

Legal principles established

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  • A dismissal order is a negative order incapable of execution and therefore incapable of being stayed

Court orders

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  1. 1.Application dismissed
  2. 2.Costs of the application to the Respondent
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court over a stay of execution application pending intended appeal to the Court of Appeal

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mwangi & another v Muiga (Environment and Land Case E016 of 2024) [2026] KEELC 5326 (KLR)", Case Analysis (2026). Not stated in the extract (suit over land parcel No. Nyeri/Endarasha/1559). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5326/eng@2026-08-12

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.