https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1519

Ndegwa v Asila & another (Civil Application E891 of 2025) [2026] KECA 1519 (KLR) (31 July 2026) (Ruling) Neutral citation: [2026] KECA 1519 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Application E891 of 2025 LK Kimaru, LM Njuguna & JO Okello, JJA July 31, 2026 Between Jackson Kamau Ndegwa Applicant and Paul Mabwa Asila 1st Respondent Nairobi City Council 2nd Respondent (Being an application for stay of execution of the ruling and order of the Environment and Land Court at Nairobi (Angote, J.) dated 23rd January 2025inNairobi ELC No. EOO9 OF 2024) Ruling 1.Before us is a notice of motion dated 15th May 2025, filed pursuant to rules 5 and 47 of this Court’s Rules and sections 3A, 3B, 4, and 5 of the Appellate Jurisdiction Act. The applicant seeks an order of stay of execution of the ruling and order of the Environment and Land Court delivered on 23rd January 2025 pending the hearing and determination of this application. The applicant further seeks orders restraining the 2nd respondent from making any payment to the 1st respondent pending the hearing and determination of his intended appeal. The applicant also prays that the cost of the application be provided for. 2.The dispute before us originated from ELC Case No. 247 of 2019: Paul Mabwa Asila vs. Nairobi City County, where the 1st respondent herein obtained a consent judgment against the 2nd Respondent for the sum of Kshs 120,000,000.00 as compensation. The applicant subsequently instituted ELC Case No. 9 of 2024, and subsequently filed an application dated 22nd March 2024, where he claimed that he had entered into a contractual agreement with the 1st respondent to facilitate the release of the decretal funds. He therefore sought prayers directing the 1st respondent to pay him the contractual sum, accrued interest at 14%, and damages on account of compounded interest annuity rate of 24%. 3.The 1st respondent opposed the applicant’s claim, asserting that the applicant had misrepresented himself as a personal friend of the President of Kenya who could influence the payment within 48 hours. The 1st respondent maintained that no valid agreement existed between them, that the applicant failed to provide any assistance, and that he had formally ceased all association with the applicant by March 2024 due to these falsehoods. 4.In the ruling by the trial court, Angote, J. dismissed the applicant’s application with costs. The learned Judge observed that the pleadings were imprecise and that the applicant had failed to establish the precise terms of the agreement or prove performance of it. The trial court expressed concern that the arrangement to share the decretal sum suggested ‘shady dealings’ between the parties and the County Government, which required further investigation. 5.Aggrieved by the dismissal, the applicant filed the present motion before this Court anchored on the grounds contained on the face of the motion, as well as the affidavit sworn by the applicant. In brief, the applicant contends that the trial court misdirected itself and exhibited excessive bias and hostility towards the applicant. That the trial court failed to appreciate the existence of an irrevocable contract dated 18th December 2023, which the applicant claims cancelled all previous agreements under which he had fully performed his obligations to facilitate the release of decretal funds from the 2nd respondent. The applicant further contends that the 1st respondent, allegedly suffering from dementia and being misled by ‘cartels’, purportedly revoked the agreement in bad faith after the work was completed. 6.In his submissions, the applicant largely reiterated the grounds set out in his affidavit by maintaining that the trial court exhibited extreme bias, that the respondent’s senility allowed a ‘cartel’ to influence the cancellation of an irrevocable contract, and that he had successfully performed his obligations regarding a file that had remained stagnant for 38 years. 7.In response, the 1st respondent filed a replying affidavit sworn on 25th February 2026 and written submissions. The 1st respondent contends that there is no written or oral agreement between himself and the applicant. He avers that he was led to believe that the applicant was capable of fast-tracking the payment of the decretal sums from the 2nd respondent as he ‘floated some names’ under the pretext of being able to influence the payment process. The 1st respondent averred that the engagement between the parties lasted for only two months before the 1st respondent terminated it. 8.The 1st respondent has argued that the motion lacks merit as the applicant has failed to establish a prima facie case, and further contends that the applicant will not suffer any irreparable damage if the orders sought are not granted. 9.During the inter-partes hearing of the application on 6th May 2026, Dr. Said Chitembwe appeared for the 1st respondent, while there was no appearance on the part of the applicant and the 2nd respondent. 10.We have considered the notice of motion, the supporting affidavit, the replying affidavit, the submissions of the parties, and the applicable law. Firstly, the orders that the applicant has sought to stay are negative in nature. Negative orders are orders where the court has not ordered any of the parties to perform any positive task. The position taken by this court in respect of applications for stay of such orders is very clear. We reiterate the sentiments of the predecessor of this Court in its decision in Western College of Arts and Applied Sciences vs. Oranga & Others [1976-80] 1 KLR, where the Court of Appeal for East Africa stated in respect of such stay of execution applications as follows:“But 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 church to make a payment out of that fund. In the instant case, the High Court has not ordered any 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 stay, it is so ordered.” 11.In the application before us, there is nothing which the learned Judge ordered to be done or to refrain from being done. All that the learned Judge did was to dismiss an application for interlocutory mandatory injunction. We also refer to the case of Co-operative Bank of Kenya Limited vs. Banking Insurance & Finance Union (Kenya) [2015] eKLR, where this Court held as follows:“An order for stay of execution [pending appeal] is ordinarily an interim order which seeks to delay the performance of positive obligations that are set out in a decree as a result of a judgment. The delay of performance presupposes the existence of a situation to stay – called a “positive order” – either an order that has not been complied with or has partly been complied with. See, for this general proposition, the holding of the Court of Appeal of Uganda in Mugenyi & Co. Advocates vs. National Insurance Corporation (Civil Appeal No. 13 of 1984) where it was stated: “an order for stay of execution must be intended to serve a purpose…’” 12.The order dismissing the applicant’s application for interlocutory mandatory injunction, being a negative order, cannot be stayed. Accordingly, we find no merit in the application. The same is dismissed with costs to the respondent. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY 2026.L. KIMARUJUDGE OF APPEAL............................L. NJUGUNAJUDGE OF APPEAL............................DR. J. O. OKELLOJUDGE OF APPEALI certify that this is a True copy of the originalSignedDEPUTY REGISTRAR