https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/4620

Avalanche Investment Group Ltd v Katumbi & 2 others (Being the Administrators of the Estate of John Makuthi Kathumbi) (Environment and Land Case 035 of 2021) [2026] KEELC 4620 (KLR) (2 July 2026) (Ruling) Neutral citation: [2026] KEELC 4620 (KLR) Republic of Kenya In the Environment and Land Court at Nairobi Environment and Land Case 035 of 2021 JG Kemei, J July 2, 2026 Between Avalanche Investment Group Ltd Applicant and Litha Katumbi 1st Respondent Nduva Kathumbi Makuthi 2nd Respondent Amani Mbula Kathumbi Makuthi 3rd Respondent Being the Administrators of the Estate of John Makuthi Kathumbi Ruling In respect to the Applicant’s Notice of Motion dated 23/1/2026 1.The Applicant's application dated 23/1/26 seeks an order staying the execution of the judgment and decree of 22/10/25 pending the hearing and determination of the appeal COA No 045 of 2025. 2.The Applicant asserts that it is dissatisfied with the aforementioned judgment, thereby prompting the filing of an appeal in the appellate court. The Respondent has subsequently filed a bill of costs, which is scheduled for ruling on 5/2/26. The Applicant is apprehensive that if the bill is taxed, the appeal may become moot. Therefore, the Applicant seeks a stay of proceedings and of execution of the judgment issued on 22/10/25, as it risks incurring losses should the application be denied. 3.The application is opposed on the grounds of opposition filed on 3/2/26 that;1.The Application is misconceived, incompetent, frivolous, vexatious and an abuse of the Court process, the suit having been dismissed in its entirety and there being no positive and/or executable decree capable of being stayed.2.The Judgment of this Honourable Court dated 22/10/2025 having dismissed the Applicant's suit, it is trite law that an order dismissing a suit does not give rise to any executable decree against which a stay of execution can issue as held by the Court of Appeal in Jeremiah Mnjogu v District Land Registrar Meru Central 5 others HYoung (EA) Ltd (Interested Party) 2021 KECA 1050 (KLR).3.The Application offends the provisions of Order 42 Rule 6 of the Civil Procedure Rules, 2010, as the Applicant has failed to demonstrate any substantial loss likely to be suffered, that the Application has been made without unreasonable delay, and any security for the due performance of the decree.4.The present application is Sub-Judice as it raises issues that are directly and substantially in issue in an application dated 20/01/2026 before the Court of Appeal in Nairobi Civil Appeal Application No. E 045 of 2026; Avalanche Investment Group Limited -v- Administrators of the Estate of the late John Makuthi Kathumba wherein the Applicant has already sought similar orders of stay and a certification for urgency was denied.5.By filing multiple applications in different Courts seeking similar reliefs, the Applicant is engaging in forum shopping and is impermissibly waging between Courts in search of a favourable decision, which conduct amounts to an abuse of the Court process.6.This Honourable Court lacks jurisdiction to grant orders on issues that are before a competent Court for determination.7.The Application is brought in bad faith, is intended to delay the Respondents’ enjoyment of the fruits of judgment, and serves no legitimate purpose in law.8.The Application cannot stand in law and ought to be dismissed with costs to the Respondents. 4.In further opposition to the application, the Respondent filed a notice of preliminary objection dated 9/2/26 on the following grounds;1.The Application is incompetent and bad in law as it is misconceived, legally untenable and amounts to misuse of the Court’s process.2.The application dated 23/01/2026 seeks to stay a negative order which neither commands any party to do anything nor restrains any party from doing anything and therefore is incapable of execution and not amenable to an order of stay whereof this Honourable Court cannot exercise its discretionary powers to grant stay of execution where there is no positive order cable of being stayed. 5.Except for the Applicant, the Respondent failed to file any written submissions despite the clear and explicit directions from the Court to do so. That said, the Court will determine the application based on the material placed before it. 6.The Applicant submitted that the purpose of the stay of execution is to preserve the status quo of the suit land pending the hearing and determination of the appeal. Regarding substantial loss, the Applicant states that the Respondents may proceed to sell the suit property, which would result in injustice and irreparable harm to the Applicant. Concerning security, the Applicant asserted that it is the Court's duty to order and enforce such amount as may be necessary to guarantee the proper performance of any decree issued by the Court. Among other points, it was argued that there was no delay in submitting the application to the Court. 7.The key issue for determination is whether the Applicant is entitled to orders of stay of execution of the judgment rendered on the 22/10/25 8.The legal provisions for stay of execution are anchored in Order 42 rule 6 of the Civil Procedure Rule that;6.Stay in case of appeal [Order 42, rule 6.](1)No appeal or second appeal shall operate as a stay of execution or proceedings under a decree or order appealed from except in so far as the Court appealed from may order but, the Court appealed from may for sufficient cause order stay of execution of such decree or order, and whether the Application for such stay shall have been granted or refused by the Court appealed from, the Court to which such appeal is preferred shall be at liberty, on Application being made, to consider such Application and to make such order thereon as may to it seem just, and any person aggrieved by an order of stay made by the Court from whose decision the appeal is preferred may apply to the appellate Court to have such order set aside.(2)No order for stay of execution shall be made under sub rule (1) unless—(a)the Court is satisfied that substantial loss may result to the Applicant unless the order is made and that the Application has been made without unreasonable delay; and(b)such security as the Court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the Applicant. 9.It is trite that for an Applicant to succeed in an Application of this nature, one must establish three conditions namely; establishment of substantial loss upon timely filing of the Application and the furnishing of security. 10.This Court is guided by the decision in the case of Butt vs. Rent Restriction Tribunal (1982) KLR 417 where the Court of Appeal stated what ought to be considered in determining whether to grant or refuse stay of execution pending appeal namely;a.The power of the Court to grant or refuse an Application for a stay of execution is a discretionary power. The discretion should be exercised in such a way as not to prevent an appeal.b.The general principal in granting or refusing a stay is; if there is no other overwhelming hindrance, a stay must be granted so that an appeal may not be rendered nugatory should that appeal Court reverse the judge’s discretion.c.A judge should not refuse a stay if there are good grounds for granting it merely because in his opinion a better remedy may become available to the Applicant at the end of the proceedings. 11.The Court in exercising its discretion whether to grant or refuse an Application for stay will consider the special circumstances of the case and its unique requirements. 12.In this case, the judgment of the Court was delivered on 22/10/25 in the following terms;“The amended originating summons herein has no merit and it is hereby dismissed with costs to the Respondent " 13.The Court observes that, as the judgment was a dismissal, the issued orders were consequently of a negative nature, in that the Court did not mandate any party to undertake any positive action. 14.The legal proposition that negative orders are not executable was discussed in the case of Milcah Jeruto vs Fina Bank Ltd [2013] eKLR where the Court held that an order for stay cannot be granted where a negative order had been issued. Under Section 2 of the Civil Procedure Act, the definition of a decree holder alludes to an order that is capable of being executed. 15.In the case of Catherine Njeri Maranga v Serah Chege & another [2017] eKLR the Court in refusing to grant orders of stay cited Kenya Commercial Bank Limited v Tamarind Meadows Limited & 7 Others [2016] eKLR, where the Court of Appeal stated:“16.In Kanwal Sarjit Singh Dhimazl v. Keshavji Juvraj Shah 2008 eKLR, the Court of Appeal, while dealing with a similar application for stay of a negative order, held as follows:“The 2nd prayer in the application is for stay (of execution) of the order of the superior Court made on 18h December, 2006. The order of 18th December, 2006 merely dismissed the application for setting aside the judgment with costs. By the order, the superior Court did not order any of the parties to do anything or refrain from doing anything or to pay any sum. It was thus, a negative order which is incapable of execution save in respect of costs only (see Western College of Arts & Applied Sciences vs. Oranga & Others [19767 KLR 63 at page 66 paragraph C)”. 16.Further, the same reasoning was applied in the case of Raymond M. Omboga v. Austine Pyan Maranga HCCA No 15 of 2010, that a negative order is one that is incapable of execution, and thus, incapable of being stayed. This is what the Court had to say on the matter:“The Order dismissing the application is in the nature of a negative order and is incapable of execution save, perhaps, for costs and such order is incapable of stay. Where there is no positive order made in favour of the Respondent which is capable of execution, there can be no stay of execution of such an order. The Applicant seeks to appeal against the order dismissing his application. This is not an order capable of being stayed because there is nothing that the Applicant has lost. The refusal simply means that the Applicant stays in the situation he was in before coming to Court and therefore the issues of substantial loss that he is likely to suffer and or the appeal being rendered nugatory does not arise...” 17.In the case of Exclusive Estates Limited Vs Kenya Posts & Telecommunications Corporation & Anor (2005) 1 EA, the dismissal orders were, for all intents and purposes, negative orders incapable of forming a basis for orders of stay of execution. 18.In this instance, the Court dismissed the suit, thereby aligning with the aforementioned decisions. Furthermore, I find that the Applicant has not demonstrated substantial loss. Consequently, it is unnecessary to examine the other criteria for the grant of stay orders. 19.The application is unmerited. it is dismissed with costs in favour of the Respondents. 20.It is so ordered. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 2ND DAY OF JULY 2026 VIA MICROSOFT TEAMS.J. G. KEMEIJUDGEDelivered Online in the presence of:N/A for the ApplicantMs. Mwangi H/B for Mr. Maingi for the RespondentCA- Ms Kendi