Moraa & 4 others v County Government of Nyamira (Environment and Land Case 76 of 2021) [2026] KEELC 5533 (KLR) (23 September 2026) (Ruling) Neutral citation: [2026] KEELC 5533 (KLR) REPUBLIC OF KENYA IN THE ENVIRONMENT AND LAND COURT AT NYAMIRA ENVIRONMENT AND LAND CASE 76 OF 2021 DO OHUNGO, J SEPTEMBER 23, 2026 BETWEEN AGNES NYARIKI MORAA ................................................................ 1ST PLAINTIFF MILKA MOKEIRA ORINA ............................................................... 2ND PLAINTIFF JOHN KIRIAMA ................................................................................. 3RD PLAINTIFF SILAS OMBOGO .................................................................................. 4TH PLAINTIFF JAPHET NYAMIANO ......................................................................... 5TH PLAINTIFF AND COUNTY GOVERNMENT OF NYAMIRA ........................................ DEFENDANT RULING 1. Judgment was delivered in this matter on 12th November 2025. The Court found no merit in the Plaintis’ case and proceeded to dismiss it with costs to the Defendant. 2. Subsequently, the Plainti led Notice of Motion dated 7th April 2026, which is the subject of this ruling. The following orders are sought in the application: i. [Spent] ii. [Spent] iii. That the Honorable Court be pleased to grant a stay of the execution of its judgment and decree herein made on 12th November 2025 by maintaining a status quo pending the hearing and determination of Court of Appeal Civil Appeal Number E017 of 2026 pending before the Court of Appeal. iv. That the costs herein do abide the intended appeal. https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5533/eng@2026-09-23 1
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3. The application is based on the grounds on its face and is supported by an adavit sworn by Agnes Nyariki Moraa, the First Plainti. She deposed that the Defendant intended to execute the decree and that the Plaintis had led an appeal, being Civil Appeal Number E017 of 2026, against the judgment. She added that the appeal had high chances of success and that it was in the interest of justice that the suit property be preserved. 4. The Defendant opposed the application through a replying adavit sworn by Erastus M. Orina, its County Attorney. He deposed that the Plaintis’ suit was dismissed in the judgment and that there is nothing capable of being enforced or stayed. 5. The application was canvassed through written submissions. The Applicants led submissions dated 22nd April 2026 while the Defendant led submissions dated 23rd April 2026. 6. I have carefully considered the application, the adavits and the submissions. The sole issue for determination is whether stay of execution pending appeal should be granted. 7. The application is brought inter alia under Order 42 rule 6 of the Civil Procedure Rules. Pursuant to the said rule, an applicant seeking stay pending appeal must demonstrate that substantial loss will result to her if stay is not granted, and that the application has been made without unreasonable delay. Further, the applicant is required to give such security as the court may order for the due performance of the decree. See Kenya Power & Lighting Co. Ltd v Kigaita Ngare Unduthu & 36 others [2020] eKLR and Kenya Shell Limited v Benjamin Karuga Kibiru & another [1986] eKLR. 8. The purpose of stay pending appeal is to suspend enforcement of the decree with a view to preserving the substratum of the appeal. Where there is no threat or possibility of execution, there is nothing to stay. 9. An example of a situation where there would be no threat or possibility of execution is where the order appealed against is a dismissal, as is the case herein. Such an order is referred to as a negative order. A negative order is incapable of execution. Consequently, there is nothing to stay in it. 10. Even a dismissal with costs does not render the decree capable of being stayed. In Jennifer Akinyi Osodo v Boniface Okumu Osodo & 3 others [2021] KECA 465 (KLR), the Court of Appeal held as follows: With regard to the rst prayer, a cursory perusal of the record herein shows that the High Court vide its judgment dated 30th July 2020, merely dismissed the applicant’s case with costs to the respondents. The parties were not ordered to do anything or to refrain from doing anything. What was therefore issued by the High Court is in the nature of a negative order incapable of execution and as such there is nothing to stay. See Western College of Arts and Applied Sciences v EP Oranga & 3 others [1976] eKLR where the Learned Judges stated thus: “what is there to be executed under the judgment, the subject of the intended appeal" The High Court has merely dismissed the suit, with costs. Any execution can only be in respect of costs. In Wilson v Church the High Court had ordered the trustees of a fund to make a payment out of that fund. In the instant case, the High Court has not ordered any of the parties to do anything, or to refrain from doing anything, or to pay any sum. There is nothing arising out of the High Court judgment for this Court, in an application for a stay, it is so ordered.” … https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5533/eng@2026-09-23 2
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Consequently, the prayer for stay of execution must fall by the wayside and the same is hereby dismissed. 11. The situation that obtained in Jennifer Akinyi Osodo v Boniface Okumu Osodo & 3 others (supra) is on all fours with that in the present application. In view of the foregoing, I nd no merit in Notice of Motion dated 7th April 2026. I dismiss it with costs to the Defendant. DATED, SIGNED, AND DELIVERED AT NYAMIRA, THIS 23RD DAY OF SEPTEMBER 2026. D. O. OHUNGO JUDGE Delivered in the presence of: No appearance for the Plaintis Mr Kamau for the Defendant Court Assistant: B Kerubo https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5533/eng@2026-09-23 3
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