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Court of AppealDismissedNotice of Motion dated 15th December 2025 (arising from Kitale ELCC No. 35 of 2017)

Agalo v County Government of Trans Nzoia & 9 others (Civil Application E088 of 2025) [2026] KECA 996 (KLR)

Court of Appeal
22 May 2026
MGM. GachokaWKW. KorirLNL. M. Ndolo
1,590 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to pause a Kitale land ruling because it dismissed the case outright - a dismissal order cannot be stayed.

What this practically means

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Executive summary

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This was an application by notice of motion dated 15th December 2025 seeking a stay of execution of the ruling and order of Nzili, J. delivered on 8th October 2025 in Kitale ELCC No. 35 of 2017, pending an intended appeal. The applicant, acting in person, argued that the trial court's dismissal of his application for stay, setting aside of judgment, and alternative compensation was fraudulently obtained, and that failure to serve him with the 1st respondent's final written submissions infringed his right to a fair hearing under Article 50(1). The 1st respondent opposed, arguing the application was res judicata, premised on concealment, and improperly reopened the suit at an interlocutory stage. The Court first clarified that it is not governed by the Civil Procedure Act or its rules, but by the Appellate Jurisdiction Act and its Rules, so the application fell under rule 5(2)(b). It reaffirmed the twin conjunctive test: the appeal must be arguable and rendered nugatory absent stay. The Court found the arguable limb satisfied on the draft memorandum raising grounds of fraud. However, on the nugatory limb, both parties conceded that the impugned ruling was a negative order merely dismissing the suit and counterclaims with no positive orders. Following established precedent, the Court held that a negative order is incapable of execution and therefore incapable of being stayed; there was nothing to stay. The application was dismissed with costs to the 1st respondent.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether the appeal would be rendered nugatory if stay is not granted
  3. 3.Whether the Court can grant a stay of execution of a negative order

Key legal issues

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01

Test for stay under rule 5(2)(b)

Holding

The twin conjunctive principles of arguability and nugatory-ness must both be satisfied

Reasoning

The Court restated the established rule 5(2)(b) test: an applicant must demonstrate the appeal is arguable, meaning not frivolous, and that it would be rendered nugatory if stay is not granted. Both limbs are conjunctive and must be met before stay can issue.

p. 3
02

Stay of a negative order

Holding

A negative order is incapable of execution and therefore incapable of being stayed

Reasoning

Both parties conceded the impugned ruling dismissed the applicant's application with no positive orders. Citing Co-operative Bank and KCB v Tamarind Meadows, the Court held that where there is nothing to stay, no stay of execution can issue, and the nugatory limb necessarily fails.

p. 4

Legal principles established

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  • An application for stay under rule 5(2)(b) must satisfy both conjunctive limbs - arguability and nugatory-ness
  • A negative order, being an order dismissing an application without positive orders, is incapable of being stayed
  • The Court of Appeal is not governed by the Civil Procedure Act or its rules; its jurisdiction is confined to the Appellate Jurisdiction Act and the Rules made thereunder

Court orders

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  1. 1.The Notice of Motion dated 15th December 2025 is dismissed with costs to the 1st respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

MG
majority

Wrote the judgment

WK
majority
LN
majority
On appeal from
Environment and Land Court
Kitale ELCC No. 35 of 2017
Jurisdiction invoked
Articles 50(1) and 159 of the Constitution; section 3A & 3B of the Civil Procedure Act; order 42 rule 6 and order 51 of the Civil Procedure Rules (as invoked by applicant); rule 5(2)(b) of the Court of Appeal Rules as the applicable provision

Relief refused

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Stay of execution of the ruling and order of Nzili, J. delivered on 8th October 2025

The impugned ruling was a negative order incapable of being stayed; there was nothing to stay

p. 4

Costs

Dismissed with costs to the 1st respondent.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

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.
p. 3rule 5(2)(b) test
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.
p. 3nature of stay of execution
It is dismissed with costs to the 1st respondent.
p. 4final orders
a negative order is one that is incapable of execution, and thus, incapable of being stayed.
p. 4negative orders

Issues in the judgment

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minor

The judgment states the application was heard virtually on 4th May 2025, which predates the Notice of Motion dated 15th December 2025; the date is internally inconsistent with the chronology

minor

The replying affidavit is sworn on 26th January 2026 and respondent submissions dated 30th April 2026, while the applicant is said to have filed a notice of appeal dated 13th October 2025 arising from a 25th June 2025 application, creating chronological inconsistencies between paragraphs 2 and 5

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Agalo v County Government of Trans Nzoia & 9 others (Civil Application E088 of 2025) [2026] KECA 996 (KLR)", Case Analysis (2026). Notice of Motion dated 15th December 2025 (arising from Kitale ELCC No. 35 of 2017). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/996/eng@2026-05-22

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.