[2025] KEELC 5101 (KLR)

[2025] KEELC 5101 (KLR)

The court found that the appellant failed to provide the judgment of the trial court, which is a primary document necessary for determining the nature of the claims and the decision. Furthermore, the court held that since the appellant's suit was dismissed, the judgment constituted a negative order, which cannot be stayed except as to costs. The court relied on established precedent that stay of execution is only available for positive orders requiring a party to do or refrain from doing something. As there was nothing to be stayed in the circumstances, the application for stay was dismissed with costs to the respondent.

Citation
[2025] KEELC 5101 (KLR)
Parties
Appellant: Jacinta Muthoni Gitari; Respondent: Mary Muthoni Gitari
Court
Environment and Land Court
Court Station
Environment and Land Court at Nanyuki
Jurisdiction
Kenya
Judgment Date
9 July 2025
Case Number
Environment and Land Appeal E007 of 2024
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Outcome
application dismissed with costs to the respondent
Judges
LN Mbugua
Legal Topics
Stay of Execution, Negative Orders, Adverse Possession, Burden of Proof
Source Language
English
Civil Procedure Land and Property Stay of Execution Negative Orders Adverse Possession Burden of Proof

Case Brief

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Parties

Jacinta Muthoni Gitari

Appellant

Mary Muthoni Gitari

Respondent

Procedural Posture

Stay Application / Ruling on Application for Stay of Execution Pending Appeal

Legal Issues

  1. 1 Whether the court should grant a stay of execution of the judgment delivered in Nanyuki MCLE NO.11 OF 2019 pending appeal.
  2. 2 Whether a stay of execution can be granted where the judgment is a negative order dismissing the suit.

Ratio Decidendi

The court found that the appellant failed to provide the judgment of the trial court, which is a primary document necessary for determining the nature of the claims and the decision. Furthermore, the court held that since the appellant's suit was dismissed, the judgment constituted a negative order, which cannot be stayed except as to costs. The court relied on established precedent that stay of execution is only available for positive orders requiring a party to do or refrain from doing something. As there was nothing to be stayed in the circumstances, the application for stay was dismissed with costs to the respondent.

Court Disposition

application dismissed with costs to the respondent

Orders

  • The application dated 5.12.2024 is dismissed with costs to the respondent.