https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/5326

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT NYERI** **ELC CASE NO. E016 OF 2024** **MOSES KAMAU MWANGI..................................................1ST APPLICANT** **SILAS MURIITHI MWANGI................................................2ND APPLICANT** **VERSUS** **MARY WANGUL MUIGA ......................................................RESPONDENT** **RULING** 1. The Applicant herein filed an application under a Notice of Motion dated 13th October 2025, seeking the following orders: 2. **That this Honourable Court may be pleased to stay the execution in this case pending the hearing and final determination of the intended appeal to the Kenya Court of Appeal.** 3. **The costs of this Application be provided for.** 4. The application is supported by the affidavit of the 1st Applicant, sworn on his own behalf and on behalf of the 2nd Applicant. 5. It is deposed that they filed this case against the Respondent, seeking orders for eviction from their mother’s land parcel No. Nyeri/Endarasha/1559, comprising 4.05 hectares, on which she has erected a number of buildings illegally. 6. That the Respondent, through her lawyer, claims the case is a boundary dispute, which the Applicants deny. 7. The Applicants also depose that in her Defence, the Respondent had stated that the Applicants are in occupation of their land, but they do not show where or how they have occupied or are in occupation of their land parcel No. Nyeri/Endarasha/559. 8. The 1st Applicant believes that their Application for review of the Ruling dated 23rd May 2025, which struck out their case, was properly before the Court for hearing and determination. 9. It is noted that the Respondent has not denied that she is on the Applicants’ land parcel No. Nyeri/Endarasha/1559 illegally, but the Applicants have denied being on the Respondent's land parcel. 10. Thus, the Applicants pray for a stay of execution in this case pending the hearing and final determination of the Court of Appeal in the intended Appeal. **The Respondent’s replying affidavit** 1. The Respondent swore a reply affidavit in response to the instant application on 23 January 2026. She deposed that there is technically nothing to stay, as this suit was struck out with costs by a ruling of this Honourable Court dated 23 May 2025. 2. That the Applicants then filed an application dated 26th May 2025 seeking a review of the said judgment, which application was dismissed with costs. 3. In both instances, the Respondent deposed that she was awarded costs, which she had taxed, and the respective bills of costs came up for ruling on 11th February 2025. 4. The Respondent contends that the instant application is bad in law as there is practically nothing to stay, seeing that the suit was dismissed as the court lacked jurisdiction from the outset being a boundary dispute, adding that ignorance of the law is not a defence. 5. It is also the Respondent’s contention that this Honourable Court is functus officio and cannot sit on an appeal of its own decision. That the grounds, on the face of the Application, go into the merits of the Ruling delivered on 23rd May 2025 and ought to be dismissed with costs. **Analysis and determination** 1. The Applicants herein seek a stay of execution, but have not specified which order of the Court they seek to stay. From the record, the Court can only assume that the Applicants seek to stay the ruling of 9th October 2025, in which the ELC (Mugo Kamau J.) dismissed the Applicants’ Application dated 26th May 2025 with costs. 2. It must be noted that a dismissal order is incapable of being stayed, as there is no positive order capable of execution. The Court of Appeal, in the case of **Jennifer Akinyi Osodo v Boniface Okumu Osodo & 3 others [2021] eKLR,** held in a similar case 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 court is unable to issue the stay of execution orders as prayed for, as there is no order that is capable of execution. 2. Application dismissed with costs **Dated, signed, and delivered virtually at Nyeri on this 12th day of August 2026.** **E. K. MAKORI** **JUDGE** **In the Presence of:** **1st & 2nd Plaintiffs** **Denis - Court Assistant** **In the Absence of** **Mr Gachiri for the Defendants**