Kabuthia & 10 others v Karanja (Civil Application E030 of 2021) [2024] KECA 155 (KLR)
The bottom line
#The Court of Appeal refused to halt enforcement because the order being challenged did not command anyone to do anything—and the applicants had already been evicted.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants satisfied the twin criteria for stay of execution pending appeal (arguable appeal and nugatory appeal)
- 2.Whether the ruling of Eboso, J. of 28th June 2019 constituted a positive order capable of execution and thus of being stayed
- 3.Whether the application had been overtaken by events given the alleged prior eviction of the applicants
Key legal issues
#Whether a negative order can be stayed
The ruling under challenge merely declined to exercise discretion in the applicants' favour and set aside a default judgment; it ordered nothing, so it is incapable of execution and there is nothing to stay.
The Court reiterated its longstanding position that where a superior court merely dismisses an application to set aside a default judgment, no positive order issues against any party. The refusal simply leaves the applicant in the position it occupied before coming to court, so questions of substantial loss and nugatory appeal do not arise. The order is executable only in respect of costs.
Whether the application was overtaken by events
Execution of the decree had already been effected - the applicants had been evicted from the suit land - so the application had been overtaken by events and could not serve any purpose.
The respondent deposed, without rebuttal from the applicants, that the applicants had already been evicted from the suit land pursuant to the decree. The Court found that by the time it heard the motion the relief sought had been rendered academic, reinforcing the conclusion that the application was devoid of merit.
Legal principles established
#- A dismissal of an application to set aside a default judgment, being a negative order that does not direct any party to do or refrain from doing anything, is incapable of execution and cannot be stayed.
- To merit stay of execution pending appeal, an applicant must demonstrate an arguable appeal and that the appeal would be rendered nugatory if stay is not granted.
Court orders
#- 1.The motion dated 3rd February 2021 seeking stay of execution of the ruling of Eboso, J. made on 28th June 2019 in Nairobi ELC Case No. 323 of 2014 is dismissed
- 2.Costs of the application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya (Environment and Land Court)
- Nairobi ELC Case No. 323 of 2014
- Jurisdiction invoked
- Rules 5(2)(b) and 42 of the Court of Appeal Rules, 2010; Order 42 rule 6(1) and Order 51 rule 1 of the Civil Procedure Rules, 2010
Relief refused
#Stay of execution of the ruling of Hon. Justice B. M. Eboso made on 28th June 2019 pending the hearing and determination of the intended appeal
The impugned ruling was a negative order incapable of execution, and execution had already occurred as the applicants had been evicted, rendering the application overtaken by events
Costs
It is dismissed with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
The motion is therefore devoid of merit and accordingly fails. It is dismissed with costs to the respondent.
There was no positive order made against the applicant capable of execution, hence there can be no stay of execution of such an order.
It is trite that a stay of execution lies at the discretion of the Court, to be exercised on a case by case basis, with a view to attaining the ends of justice.
The order of 18 th 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.
Issues in the judgment
#The respondent's replying affidavit is dated 5th March 2021, the same date as the respondent's written submissions; the judgment also records taxation scheduled for 15th March 2021 while the impugned ruling was made on 28th June 2019 - a 20-month delay in filing the stay application is noted by the respondent but the chronology is otherwise internally consistent.
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Opere v Nyakwama & another (Environment and Land Appeal E023 of 2024) [2026] KEELC 5366 (KLR)[2026] KEELC 5366 (KLR)12 Aug 2026applied
Cite this brief
#Cite this brief
Caselaw, "Kabuthia & 10 others v Karanja (Civil Application E030 of 2021) [2024] KECA 155 (KLR)", Case Analysis (2024). Civil Appeal No. 370 of 2019 (Motion dated 3rd February 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/155/eng@2024-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.