Ndegwa v Asila & another (Civil Application E891 of 2025) [2026] KECA 1519 (KLR)
The bottom line
#The Court of Appeal ruled you cannot 'stay' a dismissal — if a court orders nothing, there is nothing to pause while you appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a negative order (dismissal of an application for interlocutory mandatory injunction) is capable of being stayed pending appeal
Key legal issues
#Whether a stay of execution can issue in respect of an order dismissing an application for an interlocutory mandatory injunction
No. Such a dismissal is a negative order; there is nothing to execute or stay, and the Court of Appeal will not grant a stay in respect of it.
The court restated the long-standing position from Western College of Arts and Applied Sciences v. Oranga, that where the High Court has not ordered any party to do anything, refrain from doing anything, or pay any sum, there is nothing arising from the judgment for the appellate court to stay. It reinforced this with Co-operative Bank of Kenya Ltd v. BIFU (Kenya), which holds that stay presupposes a positive order whose performance is to be delayed. The order under challenge merely dismissed an interlocutory mandatory injunction application, imposing no obligation on any party, so the application failed.
Legal principles established
#- A negative order - one where the court has not ordered any party to perform a positive act, refrain from doing anything, or pay any sum - cannot be stayed pending appeal.
- An order for stay of execution presupposes the existence of a positive order setting out obligations in a decree that can be delayed in performance.
Court orders
#- 1.The notice of motion dated 15th May 2025 is dismissed
- 2.Costs of the application to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- ELC Case No. 9 of 2024 (arising from ELC Case No. 247 of 2019)
- Jurisdiction invoked
- Rules 5 and 47 of the Court of Appeal Rules and sections 3A, 3B, 4 and 5 of the Appellate Jurisdiction Act
Relief refused
#Stay of execution of the ELC ruling and order of 23rd January 2025 pending the hearing and determination of the application and the intended appeal
The order sought to be stayed is a negative order; there is nothing arising from it capable of execution
Orders restraining the 2nd respondent from making any payment to the 1st respondent pending the intended appeal
The dismissal of the interlocutory mandatory injunction application left no positive obligation to restrain; the motion lacked merit
Costs
The application 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 order dismissing the applicant’s application for interlocutory mandatory injunction, being a negative order, cannot be stayed. Accordingly, we find no merit in the application. The same is dismissed with costs to the respondent.
Negative orders are orders where the court has not ordered any of the parties to perform any positive task.
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, it is so ordered.
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.
Issues in the judgment
#Chronological inconsistency: the 1st respondent's replying affidavit is stated to have been sworn on 25th February 2026, and the hearing took place on 6th May 2026, both dates being after the motion dated 15th May 2025 but the judgment is dated 31st July 2026; the February 2026 affidavit date appears anomalous but cannot be resolved from the judgment alone.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndegwa v Asila & another (Civil Application E891 of 2025) [2026] KECA 1519 (KLR)", Case Analysis (2026). Notice of Motion dated 15th May 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1519/eng@2026-07-31
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.