https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3294

 **REPUBLIC OF KENYA** **IN THE ENVIRONMENT AND LAND COURT AT MACHAKOS** **ELC CIVIL SUIT NO. E007 OF 2022** **PETER XAVIER INDINDI OJIAMBO……………………….……..1ST PLAINTIFF** **JAMES SIMPSON SAKA……………………….…………………..2ND PLAINTIFF** **VERSUS** **EMBAKASI RANCHING COMPANY LIMITED………………..1ST DEFENDANT** **KIPKAI ENTERPRISES LIMITED…………………..……………2ND DEFENDANT** **CHIEF LANDS REGISTRAR……………………………..……...3RD DEFENDANT** **THE HON. ATTORNEY GENERAL......................................4TH DEFENDANT** **RULING** 1. Being dissatisfied with the ruling of this court delivered on 16 September 2025, the plaintiffs promptly lodged a notice of appeal on the instant date, thus paving the way for this court to entertain their instant motion dated 14 October 2025 that is now the subject of this ruling, which seeks the following reliefs: - 2. ***Spent.*** 3. ***Spent.*** 4. ***That there be a stay of execution of the ruling of Hon. A Y Koross, J, dated the 16th September 2025, by way of an order that the 2nd defendant severally, its directors, agents, servants, assigns and/or employees be restrained from trespassing, disposing of and interfering with L.R. Number 12715/6 in any way whatsoever pending the hearing and determination of the appeal.*** 5. ***That the costs of this application be provided for.*** 6. The motion is supported by the grounds therein as well as the affidavit sworn on the instant date by the 1st plaintiff. In a nutshell, he states that the appeal is not frivolous and that, unless the stay sought herein is granted, the already lodged appeal may be rendered ineffective and the plaintiffs may suffer substantial loss, as the claim concerns land. Further, the 2nd defendant has entered the land and commenced construction; hence, it is necessary to preserve the suit land by maintaining its current status quo; there should be no sale, charging, or construction on the suit land, and that the application has been made in a timely manner. 7. The motion is opposed by a replying affidavit sworn by Jane Matoke Nyaboke for the 2nd defendant on 2 February 2026. Concisely, she states that the application is fundamentally misconceived because it seeks to stay a final ruling that struck out the entire suit. Following that determination, there is no subsisting suit, decree, or executable order capable of being stayed under **Order 42 Rule 5** of the **Civil Procedure Rules.** The plaintiffs did not demonstrate any substantial loss as required by law. The impugned ruling did not order eviction, demolition, dispossession, or restraint against the plaintiffs; it merely struck out an incompetent suit. The plaintiffs are improperly invoking the principle of preservation to revive a suit that no longer exists. Furthermore, the plaintiffs have neither annexed any draft memorandum of appeal to show that the intended appeal is arguable nor offered security for the due performance of any decree. 8. The motion is canvassed by written submissions. The plaintiffs’ submissions are filed by their law firm on record, **Ms. A.I. Onyango & Co. Advocates,** dated 2 February 2026. As for the 2nd defendant, its law firm on record, **Ms. Julius Nyakiangana & Co. Advocates,** filed written submissions dated 24 April 2026. Accordingly, having carefully considered the motion, its grounds, the affidavits, the rival submissions, and guided by the law and judicial precedents, the issues for determination are **(a) whether negative orders are capable of being stayed** and **(b) whether the plaintiffs have met the legal threshold to warrant a stay of execution pending appeal.** These two issues shall be handled together. 9. As correctly submitted by both counsel, in considering applications for a stay of execution pending appeal, this court must ensure that the criteria established in **Order 42 Rule 6 (2)** of the **Civil Procedure Rules** have been satisfied, and it states as follows. ***“No order for stay of execution shall be made under sub rule (1) unless:*** ***(a) the court is satisfied that substantial loss may result to the applicant unless the order is made and that the application has been made without unreasonable delay; and*** ***(b) such security as the court orders for the due performance of such decree or order as may ultimately be binding on him has been given by the applicant.”*** Emphasis added**.** 1. In their submissions, both counsels argued on the principles of a stay of execution pending appeal, and rely on the principles that are well established from the decisions of **Butt v Rent Restriction Tribunal [1979] KECA 22 (KLR, Tropical Suppliers Ltd & Others Vs international Credit Bank Ltd [2004] 2 EA 331,** and **Chelimo & 2 others v Mwangi [2023] KEELC 16112 (KLR).** 2. Nevertheless, this court is constrained from applying the legal tests governing a stay of execution, as it, in its ruling delivered on 16 September 2025, merely struck out the plaintiffs’ claim, with each party bearing their own costs of the suit and motion. In essence, the ruling returned the parties to the position they were in before the suit was filed. Further, in concurrence with the 2nd defendant, this court is now *functus officio.* Consequently, this court finds that nothing is pending for execution or capable of being stayed, a position supported by the persuasive decision in **Western College of Arts and Applied Sciences v Orange & Others [1976] KLR 63,** which the 2nd defendant has relied upon. In that decision, the court held: ***“But what is there to be executed under the judgement, 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 the 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, to enforce or restrain by an injunction...”*** 1. Furthermore, in the case of **Jennifer Akinyi Osodo v Boniface Okumu Osodo & 3 others [2021] KECA 465 (KLR),** the Court of Appeal upheld the principle that a negative order is not subject to a stay order, thereby reaffirming the legal principles established in **Western College *(Supra)*** and the decision in **Raymond M. Omboga v Austine Pyan Maranga Kisii HCCA No 15 of 2010.** This binding decision held: - ***‘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.’*** ***See also the Court of Appeal decisions of*** [***Registered Trustees, Kenya Railways Staff Retirement Benefits Scheme v Millimo, Muthomi & Co. Advocates & 2 others [2022] KECA 491 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/2022/491/eng%402022-02-18)***,*** [***Kaushik Panchamatia & 3 others v Prime Bank Limited & another [2020] KECA 418 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/2020/418/eng%402020-08-07)*and* [***Opondo v Onyango (Sued as Administrator of the Estate of Charles Onyango Gucha) [2023] KECA 1076 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1076/eng%402023-09-22)***,*** which all affirmed this position of law. 1. Given the above and guided by the law and judicial precedents, this court need not say more. It finds that the notice of motion dated 16 September 2025 is not merited and hereby dismisses it, with each party bearing their respective costs. Orders accordingly. **Delivered and Dated at Machakos this 2nd day of June, 2026.** **HON. A. Y. KOROSS** **JUDGE** **02.06.2026** **Ruling delivered virtually through Microsoft Teams Video Conferencing Platform** In the presence of; Ms. Kanja Court Assistant. Mr. Ojiambo for plaintiffs. No appearance for respondent.