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ELCDismissedNot stated in the excerpt (Makueni ELC suit; application dated 17th May, 2024)

Kiptanui & another (Both Suing as the Administrators of the Estate of the Late Abraham Kiptanui) v Ruto (Environment & Land Case 356 of 2016) [2025] KEELC 502 (KLR)

Environment and Land Court
13 February 2025
1,152 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

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What this practically means

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Executive summary

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This Environment and Land Court ruling at Makueni, delivered by Hon. E. O. Obaga, Judge, on 13th February 2025, determined a Notice of Motion dated 17th May, 2024 in which the Plaintiffs/Applicants sought a stay of the court's judgment of 16th May, 2024, which had dismissed their suit - concerning land they claimed to have occupied since 1990 - with costs to the Defendant/Respondent. The Applicants argued they had been in possession under restraining orders that had automatically lapsed, that eviction would cause them substantial loss and render their intended appeal to the Court of Appeal nugatory, and that they were ready to furnish security. The Respondent opposed, asserting her entitlement to enjoy the fruits of the judgment, that the Applicants occupied the property illegally, and that as the suit was filed before she obtained letters of administration to her late husband's estate, there was nothing capable of being stayed. The Applicants relied on authorities on Order 42 Rule 6, substantial loss, the balancing of competing interests and security; the Respondent relied on Kenya Commercial Bank v Sun City Properties and Veronica Njoki Wakagoto on intermeddling with estate property. The court framed a single issue: whether the Applicants were entitled to stay. It held the dismissal with costs was a negative order incapable of being stayed, the only execution being on costs which the Applicants did not show they could not recover; and even under Order 42 Rule 6, no substantial loss was demonstrated, since success on appeal would simply change the registered title. The application was dismissed with costs to the 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 Applicants have demonstrated that they are entitled to orders of stay of execution pending their intended appeal

Key legal issues

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01

Entitlement to stay of execution pending appeal under Order 42 Rule 6

Holding

Stay refused. The dismissal of the suit was a negative order incapable of stay, and even applying Order 42 Rule 6, no substantial loss was demonstrated.

Reasoning

The court noted the suit was dismissed with costs, so the only execution would be on costs, and the Applicants never asserted they could not recover those costs if the appeal succeeded. Even hypothetically applying the Order 42 Rule 6 conditions, the Applicants failed to show what substantial loss they would suffer; if they succeeded on appeal, title would simply be changed, so the appeal would not be rendered nugatory.

p. 3

Legal principles established

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  • An order of dismissal with costs is a negative order incapable of being stayed; where only execution is on costs and the applicant has not shown the costs would be irrecoverable, no substantial loss is demonstrated

Court orders

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  1. 1.The Notice of Motion dated 17th May, 2024 seeking stay of execution of the judgment of 16th May, 2024 is dismissed
  2. 2.Costs of the application to the Respondent

The bench

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

majority

Wrote the judgment

Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal); the court retained seisin over its own judgment

Relief refused

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Stay of the judgment entered on 16th May, 2024 and the resultant decree pending the hearing and determination of the intended appeal

The suit was dismissed with costs, a negative order incapable of being stayed; the only execution would be on costs, and the Applicants did not show they could not recover costs if the appeal succeeded, nor that they would suffer substantial loss rendering the appeal nugatory

p. 3

Costs

Application dismissed with costs to the 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 begin with, it is important to note that the Applicants' suit was dismissed with costs. This was therefore a negative order which is incapable of being stayed.
p. 3Negative orders incapable of stay
For these reasons, I find that the Applicants' application is devoid of merit. The same is dismissed with costs to the Respondent. It is so ordered.
p. 3Disposition

Issues in the judgment

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minor

The judgment text does not state the suit or case number of the matter; the application is identified only by its date of 17th May, 2024

minor

Respondent argues the Applicants had no capacity to sue before obtaining letters of administration (deceased's estate), but the ruling does not resolve or make any order on that point

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, "Kiptanui & another (Both Suing as the Administrators of the Estate of the Late Abraham Kiptanui) v Ruto (Environment & Land Case 356 of 2016) [2025] KEELC 502 (KLR)", Case Analysis (2025). Not stated in the excerpt (Makueni ELC suit; application dated 17th May, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/502/eng@2025-02-13

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