https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5296

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT OF KENYA AT NYERI** **ELC APPEAL NO. E003 OF 2026** **MONICA WANJIRU KIAGO.......................................................APPLICANT** **-VERSUS-** **DAVIDSON WARUTERE IREGI............................................RESPONDENT** **RULING** 1. The Applicant herein filed an application under a Notice of Motion dated 15th January 2026, seeking the following orders: 2. **Spent.** 3. **Spent.** 4. **That this Court be pleased to stay the interlocutory judgment entered and all other consequential orders made by the Hon. F.K. Munyi pending the hearing and determination of this application.** 5. **This Court be pleased to grant a stay of execution pending the hearing and determination of the appeal.** 6. **That costs of this application be in the cause.** 7. The Applicant swore the affidavit in support and deposed that an interlocutory judgment was entered against her by the Trial Court on 15 July 2025. 8. Subsequently, the Applicant filed an application to set aside the interlocutory judgment, but the application was dismissed. 9. Aggrieved by the said ruling, the Applicant has filed this appeal against it within 30 days of its pronouncement. She argues that the appeal raises substantial questions of law and fact which make it fit to be determined 10. The Applicant is apprehensive that the Respondent has written to the Nyeri Magistrate Court seeking the issuance of warrants of Attachment & Sale and has since filed an application for execution of decree dated 13th January, 2026, and warrants of attachment for signature. 11. It is the Applicant’s case that unless this Court grants a stay of execution of the interlocutory judgment and all consequential orders pending the hearing and determination of the appeal, she will be highly prejudiced and suffer irreparable loss, given that this is an ELC matter. 12. She also contends that no prejudice will be caused to the Respondent if this application is allowed, and that it is therefore in the interests of justice that this application be allowed. **The Respondent’s replying affidavit** 1. The Respondent swore a replying affidavit to the instant application, in which he deposed that the present Application is misplaced to the extent that the Applicant has not demonstrated that she has an arguable appeal, as the trial Magistrate, in the impugned ruling, observed that her defence, as it were, did not raise a triable issue capable of further interrogation as required by law. 2. Further, the Applicant has failed to offer security to comply with the mandatory requirement to provide security for the due performance of the decree, which is a monetary decree, as required under Order 42 Rule 6 of the Civil Procedure Rules. 3. That the Applicant has also failed to state or indicate what substantial loss she will suffer if the stay of execution of the decree is not issued as required under Order 42, rule (6) of the Civil Procedure Rules, or that she will suffer substantial loss if the stay of execution is not granted and she succeeds on appeal. 4. The Respondent contends that the Application has been made in bad faith to deny the Respondent the fruits of his judgment, noting that the Applicant received money for the purchase of Commercial Plot No. 19 at Gatitu Market within Nyeri Municipality but failed to transfer the plot and/or provide the transfer documents to him. The Respondent has been waiting for over five (5) years for a refund, but the Applicant has remained adamant. 5. The Respondent also swore a supplementary affidavit, in which he deposed that he is willing and able to refund the decretal sum if the Appeal herein succeeds. 6. Further, the Application should be dismissed as the same is frivolous, the lower court having found that the draft defence raised mere denials and did not allege any forgery/fraud. 7. He added that the Applicant was sentenced in Nyeri Criminal Case No. E967/2024 to serve a probation sentence for obtaining money by false pretences in respect of the suit property. 8. The parties herein filed written submissions, which the Court has duly read and considered. **Analysis and Determination** 1. The Applicant/Appellant herein seeks a stay of execution of the interlocutory judgment entered by the Hon. F.K. Munyi in **Nyeri CMELC Case No. E017 OF 2025**, pending the hearing and determination of this appeal. 2. However, I note that the aforementioned interlocutory judgment has not been annexed to the application. The Applicant has submitted the trial court's ruling dismissing his application to set aside the said interlocutory judgment. 3. Thus, since the record of appeal has yet to be filed by the Applicant/Appellant herein, the Court does not have the benefit of assessing exactly which decision the Applicant herein seeks to stay execution of. 4. In the case of **Maiyo v Too (Civil Appeal E179 of 2024) [2024] KEHC 14286 (KLR), the Court** noted that: ***“I note that the Applicant has attached pleadings from the Trial Court but the Ruling or order sought to be stayed has not been annexed for perusal.*** ***“Failure to attach the order poses several challenges since Court is not able to securitize the reasons the trial Court preferred to refer the matter to Court annexed mediation in order to issue the payers sought. I cannot begin to assess the substantial loss the Applicant is likely to suffer if the Applicant has not demonstrated the loss she will suffer if the matter proceeds to mediation.*** ***If the Court was to make a finding on the merits or demerits of the Application it would be proceeding blindly and since Prayer No (b) seeks discretionary orders, the Court cannot exercise its discretion in a vacuum. The Applicant is literally asking the Court to make a decision on nothing.”*** 1. I also note that the Applicant/Appellant herein seeks to appeal the Trial Court’s ruling dated 9th December 2025, which dismissed her application to set aside the said interlocutory judgment, not the actual interlocutory judgment. A dismissal order is inherently negative and cannot be stayed. The Court of Appeal in the case of **Jennifer Akinyi Osodo v Boniface Okumu Osodo & 3 others [2021] eKLR** quoted the following decisions and held that: ***“With regard to the first 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.”*** ***Similarly, in Raymond M. Omboga v Austine Pyan Maranga Kisii HCCA No 15 of 2010, Makhandia, J (as he then was) stated thus: “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 do not arise..."*** ***Consequently, the prayer for stay of execution must fall by the wayside and the same is hereby dismissed.”*** 1. Therefore, the instant application is without merit. It is dismissed with costs. **Dated, signed, and delivered virtually at Nyeri on this 6th day of August 2026.** **E. K. MAKORI** **JUDGE** **In the Presence of:** **The Applicant (in person)** **Denis - Court Assistant** **In the Absence of:** **The Respondent (in person)**