https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3820

Nabwana v Makokha (Environment and Land Appeal E031 of 2025) [2026] KEELC 3820 (KLR) (10 June 2026) (Ruling) Neutral citation: [2026] KEELC 3820 (KLR) Republic of Kenya In the Environment and Land Court at Busia Environment and Land Appeal E031 of 2025 L Waithaka, J June 10, 2026 Between Christopher Ludasia Nabwana Appellant and Felix Mwita Makokha & 4 others Respondent Ruling 1.By a Judgment delivered on 9th December 2025 in Busia MCELC/E011 of 2025, the trial magistrate Hon. Anne Njeru, struck out the Applicant/Appellant case/suit with costs to defendants/respondents. In striking out suit, the learned trial magistrate inter alia stated/held: -“… Having considered the pleadings, evidence, submissions and the law, I make the following orders: This suit is hereby struck out for want of jurisdiction under section 18(2) of the Land Registration Act. I further that the matter is sub judice Busia ELC No. E013 of 2022. The plaintiff having failed to prove trespass, no substantive orders can issue. Costs of the suit are awarded to the Defendants.” 2.It is clear from the judgment of the lower court that other than the order for costs, the Court did not make any order requiring parties to do or refrain from doing anything. Despite that factual situation concerning the case presented before the lower court, the appellant/applicant, vide a chamber summons (application) dated 5th January 2026 has approached this court seeking stay of execution of the orders issued by the lower court. 3.From the averments contained in the applicant’s further affidavit, I gather that the stay of execution is in respect of the order for costs issued in favour of the defendants/ respondents. 4.In reply and opposition to the application, the respondents through the affidavit (replying) of Felix Mwita Makokha sworn on 10th February 2026, have inter alia deponed that striking out of the suit is a negative order which cannot be stayed; that payment of costs of the suit cannot render the appeal nugatory and that the appellant has not satisfied the conditions for grant of stay of execution pending appeal. 5.The application was disposed of by way of written submissions. 6.In his submissions dated 5th March 2026, the applicant has given the rationale for stay of execution pending appeal and the conditions for being granted an order of stay pending appeal. As to whether he has made up a case for being granted an order of stay of execution pending appeal, He submitted/addressed the court as follows: -“The trial Court is yet to ascertain the costs to be paid as such stay of process should be stayed pending the appeal…It is clear the applicant acted swiftly in filing the Memorandum of Appeal…and obtaining a stay which is yet to be granted. We submit that this court be satisfied and be inclined to grant stay of execution and allow the applicant to pursue his appeal.” 7.In their submissions dated 26th March 2026, the respondents have submitted that the order issued by the trial court was negative hence incapable of forming the basis of issuance of the order sought; that payment of costs of the dismissed suit cannot be termed substantial loss and that the applicant has failed to demonstrate that if stay is denied, he will suffer irreparable harm or substantial loss. 8.Terming the application misconceived, without merit and an abuse of the Court process, the respondents further submitted that the applicant has not demonstrated how payment of assessed costs will render the appeal nugatory or how he would suffer prejudice which cannot be compensated by award of costs. 9.The application before me being one for stay of execution of the decision of the lower court pending hearing and determination of the appeal, the burden is on the appellant/applicant to fulfil the conditions set out in Order 42 rule 6(1) of the Civil Procedure Rules and restated in many decided cases. These are: -a.Substantial loss may result to the applicants unless the order is made;b.That the application has been made without unreasonable delay; andc.The applicant has given such security as the court orders for the due performance of such decree or order as may ultimately be binding on him. 10.I have considered the application, the response thereto, submissions by the parties and the law applicable in respect thereof and I find the sole issue for the court’s determination to be whether the applicant have made up a case for being granted an order of stay of the decision of the lower court pending appeal. 11.As pointed out herein above, other than dismissing the appellant/applicant’s suit with costs to the respondents, the trial court did not issue any order requiring the parties to do or refrain from doing anything. 12.The order given or issued by the trial court is, therefore, negative in nature. 13.In Chege v Gachora (Civil Appeal 265 of 2023) (2024) KEHC 1994 (KLR) (29 February 2024) (Ruling) the Court stated/held: -“I have further perused the court record and noted that the ruling dated 30th August 2023 in Thika CMCC No.718 of 2021 before the trial court dismissed the application dated 14th March 2023 that sought to set aside the orders issued on 5th April 2023. The orders the applicant sought to set aside were for dismissal of his application for stay of execution for the reason that the applicant failed to serve the said application on the respondent despite the court ordering him to do so. In essence the impugned ruling is a negative order and is incapable of execution. This principle was enunciated in Cooperative Bank of Kenya Limited v. Banking Insurance & Finance Union (Kenya) (2015) e KLR where the court held as follows:-‘An order for stay of execution (pending appeal) is ordinary an interim order which seeks to delay 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 positive order-either an order that has not been complied with or has partly been complied with’. 14.In Kimondo & Another v Progressive Credit Ltd (Civil Appeal 49 0f 2023) (2025) KEHC 7297 (KLR) (21 May 2025) (Ruling), the Court stated/held: -“It is trite law that stay of execution cannot be ordered against negative orders.” 15.In Kimondo & Another v. Progressive Credit Ltd (supra), the Court made reference to Western College of Arts and Applied Sciences v EP Oranga & 3 others (1976) KECA 15 (KLR) where the Court of Appeal stated: -“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 Fund to make payment out of that fund. In the instant case, the High Court has not ordered any of the parties to do 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.” 16.In Jennifer Akinyi Osodo v Bonface Okumu Osodo & 3 Others (2021) e KLR the Court of Appeal held that a negative order cannot be the subject of a stay order. 17.In the circumstances of this case, the only order issued by the trial court capable of execution is the order awarding the respondents costs. Regarding that order, no specific amount has been adjudged as payable to the respondents as the bill of costs is yet to be ascertained. Moreover, other than contending that the trial magistrate erred in law and fact when she dismissed his suit with costs, the applicant has not demonstrated how payment of the decree for costs would render his intended appeal nugatory. 18.Whereas the applicant in his supporting affidavit has deponed that the respondents are in the process of demolishing his house, from the pleadings filed in the lower court, I note that it is the applicant who sought an order of eviction from the respondent. I also note that no eviction order was issued in favour of the respondents on which an order of stay or for stopping the alleged threatened demolition of the applicant’s house can hinge. If the applicant desired to stop the threatened eviction pending hearing and determination of the appeal, the right application would be one for injunction pending appeal and not an application for stay as the legal principles that undergird an application for stay pending appeal are different from those of an application for injunction pending appeal. 19.The upshot of the foregoing is that the applicant has not made up a case for being granted the orders sought. Consequently, I find the chamber summons application dated 5th January 2026 to be not only misconceived but also ill-advised and I dismiss it with costs to the respondents. 20.Orders accordingly. RULING DATED, SIGNED AND DELIVERED VIRTUALLY AT BUSIA THIS 10TH DAY OF JUNE, 2026.L. N. WAITHAKAJUDGEIn the presence of:Mr. Ouma for the ApplicantMr. Bogonko for the RespondentSikolia: Court Assistant