https://new.kenyalaw.org/akn/ke/judgment/keca/2026/996

Agalo v County Government of Trans Nzoia & 9 others (Civil Application E088 of 2025) [2026] KECA 996 (KLR) (22 May 2026) (Ruling) Neutral citation: [2026] KECA 996 (KLR) Republic of Kenya In the Court of Appeal at Eldoret Civil Application E088 of 2025 PM Gachoka, WK Korir & L Ndolo, JJA May 22, 2026 Between Peter Midomo Agalo Applicant and County Government of Trans Nzoia 1st Respondent county Land Registrar, Trans Nzoia County 2nd Respondent The Honourable Attorney General 3rd Respondent Cabinet Secretary, Land and Physical Planning 4th Respondent Chief Land Registrar 5th Respondent Director of Physical Planning 6th Respondent County Surveyor, Trans Nzoia 7th Respondent Director of Survey 8th Respondent Physical Planner, Trans Nzoia County 9th Respondent The Inspector General of Police 10th Respondent Ruling 1.The applicant’s Notice of Motion dated 15th December 2025 has invoked Articles 50 (1) and 159 of the Constitution, section 3A & 3B of the Civil Procedure Act, order 42, rule 6 and order 32 and order 51, rules 1, 3, 4, & 10 (2) of the Civil Procedure Rules, seeking a stay of execution of the ruling and order delivered by Nzili, J. on 8th October 2025 in Kitale ELCC No. 35 of 2017; Peter Midomo Agalo v County Government Of Trans Nzoia & 9 Others, pending the hearing and determination of an intended appeal. The application is premised on the grounds on its face and the affidavit of the applicant, sworn on 15th December 2025. 2.The facts giving rise to this Motion are that the applicant filed an application dated 25th June 2025, seeking stay of execution, setting aside of the judgment dated 11th June 2025 and, in the alternative, an award on compensation set out in his amended plaint or an alternative plot instead of the compulsory acquisition of L.R. No. Kitale Municipality Block 4/413. It is this application that was dismissed by the trial court, the substratum of the intended appeal. Thereafter, the applicant lodged his Notice of Appeal dated 28th October 2025. 3.The applicant lamented that to his utter dismay, when he was perusing the trial court file, he discovered that the 1st respondent had filed final written submissions. They were never served upon him; an indication of the said party stealing a match from him. He argued that the failure to be served with those submissions infringed upon his constitutional right to a fair hearing as set out in Article 50 (1) of the Constitution since the 1st respondent sought to introduce new and important evidence. 4.In support of the fact that the appeal was arguable, the applicant annexed a draft memorandum of appeal dated 15th December 2025. He further delved deeper into the annexures he would have relied on to prosecute the suit, contending that the judgment was fraudulently obtained. He was apprehensive that if stay is not granted, the 1st respondent would be at liberty to take steps that would irreparably prejudice his rights and interests in the suit property. Further, he risked being evicted. He acknowledged, however, that the judgment was a negative order. 5.The 1st respondent filed a replying affidavit, sworn by Karani O. Aggrey, advocate for the 1st respondent, on 26th January 2026. It was deposed that the applicant filed suit, which, together with the counterclaim, was dismissed for being unsubstantiated. The applicant filed appeal against that decision. It was pointed out that the applicant was guilty of concealment of material facts as similar applications, as is the present one, dated 25th June 2025 and 7th August 2025, had been lodged before the trial court, heard and dismissed. Arising therefrom, the applicant has filed a notice of appeal dated 13th October 2025. The deponent deposed that for those reasons, the application ought to be dismissed for being res judicata. 6.The 1st respondent continued that the allegations set out by the applicant were untrue. Furthermore, the application was not premised on any solid grounds. In the deponent’s view, the applicant was unprocedurally reopening the suit and therefore prosecuting his appeal at this interlocutory stage. For those reasons, the 1st respondent prayed that the application be dismissed. 7.The application was heard virtually on 4th May 2025. The applicant appeared in person while the 1st respondent was represented by learned counsel Mr. Karani. The other respondents were absent in spite of being duly served with the hearing notice. 8.The applicant relied on his written submissions dated 23rd December 2025 to argue that the appeal was arguable and would be rendered nugatory if stay was not granted. On the part of the 1st respondent, written submissions dated 30th April 2026 were filed on its behalf. Mr. Karani urged the Court to dismiss the application with costs as no grounds had been enunciated to issue the orders sought. 9.We have considered the application, the affidavit in support and opposition thereto, the annexures thereto and the rival written submissions. We have also analyzed the law. Contrary to what the applicant hinged this application on, this Court is not governed by any provisions of the Civil Procedure Act or the rules thereunder. Its jurisdiction is confined to the provisions of the Appellate Jurisdiction Act and the Rules set out therein. 10.The present application is governed by the provisions of rule 5 (2) (b) of the Court of Appeal Rules. To succeed, an applicant must satisfy the following twin conjunctive principles: firstly, an applicant must demonstrate that the appeal is arguable and secondly, it would be rendered nugatory if stay is not granted. 11.On whether the appeal is arguable, this Court in Housing Finance Company of Kenya Limited v Sharock Kher Mohamed Ali Hirji & Anor [2015] eKLR, has held that the applicant only has to show that the intended appeal should not be frivolous. The applicant has annexed a draft memorandum of appeal that raises several grounds disputing the trial court’s findings. Particularly, the applicant has complained that the impugned decision was obtained through fraudulent means. We are satisfied that the applicant has demonstrated this limb. As to whether the grounds set out are merited, we leave it to the bench that will hear and determine the appeal. 12.Turning to the nugatory aspect, it must be demonstrated that if the orders sought are not granted, the appeal will be rendered nugatory. In establishing whether an applicant has met this threshold, this Court must also consider the effect of the impugned judgment to determine whether the orders of stay of execution are capable of being granted. 13.In this case, both parties concede that the orders being sought to be stayed are negative in their nature. In other words, the application, the subject of the impugned ruling, was dismissed with no further positive orders. Further, at paragraph 19 of the impugned ruling, the trial court held:“The 1st respondent has opposed the motion, stating that the judgment was a negative order incapable of being stayed or enforced by the court. In the impugned judgment, the court simply dismissed the applicant’s suit as well as the counterclaims by the defendants. As rightly put by the 1st respondent what exists is a negative order, which is incapable of being stayed by this court.” 14.Is this court capable of granting the orders sought? In Co- operative Bank of Kenya Limited v Banking Insurance & Finance Union (Kenya) [2015] eKLR, this Court held as follows on negative orders:“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.” 15.Similarly, in Kenya Commercial Bank Limited v Tamarind Meadows Limited & 7 Others [2016] eKLR this Court expounded on stay of execution stating:“In Kanwal Sarjit Singh Dhiman v Keshavji Juvraj Shah [2008] eKLR the Court of Appeal while dealing with a similar application for stay of a negative order, held as follows: -The 2nd prayer in the application is for stay (of execution) of the order of the superior court made on 18th December 2006. The order of 18th December 2006 merely dismissed the application for setting aside the judgment with costs. By the order, the superior court did not order any of the parties to do anything or refrain from doing anything or to pay any sum. It was thus, a negative order which is incapable of execution save in respect of costs only.The same reasoning was applied in the case of Raymond M. Omboga v Austine Pyan Maranga (supra) that a negative order is one that is incapable of execution, and thus, incapable of being stayed. This is what the Court had to say on the matter: -The order dismissing the application is in the nature of a negative order and is incapable of stay 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 incapable 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 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 does not arise….” 16.Following the trend in the above precedents, it is our considered view that there is nothing to stay. We are therefore incapable of issuing the orders sought. For those reasons, we find that the present Notice of Motion lacks merit. It is dismissed with costs to the 1st respondent. DATED AND DELIVERED AT ELDORET THIS 22ND DAY OF MAY, 2026.M. GACHOKA C.Arb, FCIArb.......................................JUDGE OF APPEALW. KORIR......................................JUDGE OF APPEALL. M. NDOLO......................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR