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ELCDismissed

Mwango & 2 others v Maonga & another (Environment and Land Appeal E011 of 2024) [2025] KEELC 785 (KLR)

High Court of Kenya
20 February 2025
YAY. M. Angima
570 words in judgment
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The bottom line

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Kenya's High Court confirmed you cannot get a stay of execution against a ruling that merely dismissed your application, since such orders command nobody to do anything.

What this practically means

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Executive summary

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By a notice of motion dated 22.04.2024 the appellant had sought leave to appeal out of time against a ruling and order of the trial court dated 27.11.2023, together with a stay of that order; the order challenged arose from the dismissal of his application to review a judgment entered against him on 21.02.2023. On 30.10.2024 the court (N.A. Matheka J) dismissed that motion, finding the intended appeal unarguable and the delay unexplained, with costs to the respondent. Aggrieved, the appellant filed a further notice of motion dated 14.11.2024 under Sections 3, 3A and 63(e) of the Civil Procedure Act and Orders 42 rule 6, 50(6) and 51 rule 1 of the Civil Procedure Rules, seeking a stay of execution of the ruling of 30.10.2024 pending his intended appeal. He contended he was aggrieved by the ruling, that there was an imminent threat of execution rendering his appeal nugatory, that the application was filed without unreasonable delay, and that he would abide by any conditions. The respondent filed no response despite being given ten days on 05.02.2025, and filed no submissions. The appellant relied wholly on his supporting affidavit and the grounds on the motion. Angima J held that the order of 30.10.2024 was a negative order merely dismissing the appellant's earlier application; the court had directed no party to do or refrain from doing anything, and following Western College of Arts and Applied Science v E. P. Oranga & 3 Others, there was nothing to stay. The motion was dismissed with no order as to costs.

Questions the Court framed

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

  1. 1.Whether there is anything capable of being stayed in respect of the order dated 30.10.2024 dismissing the appellant's application for leave to appeal out of time and stay of execution
  2. 2.Whether the appellant's notice of motion dated 14.11.2024 for stay of execution of the ruling of 30.10.2024 has merit

Key legal issues

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01

Whether a stay of execution can issue in respect of an order dismissing an application

Holding

No. The ruling of 30.10.2024 was a negative order that merely dismissed the appellant's application for leave to appeal out of time and stay; it commanded no party to do or refrain from doing anything, hence there was nothing to stay.

Reasoning

The court examined the nature of the order of 30.10.2024 and observed that a stay of execution presupposes an order capable of execution, that is, one requiring a party to act or refrain from acting. Since the impugned ruling merely dismissed the appellant's earlier motion, without imposing any obligation on any party, no executable obligation existed. Relying on Western College of Arts and Applied Science v E. P. Oranga & 3 Others, the court concluded that an order dismissing an application is a negative order which cannot be stayed.

p. 2

Legal principles established

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  • A negative order that merely dismisses an application, without directing any party to do or refrain from doing anything, is incapable of being stayed

Court orders

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  1. 1.The appellant's notice of motion dated 14.11.2024 is dismissed
  2. 2.No order as to costs

The bench

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

YA
majority

Wrote the judgment

On appeal from
the trial court
Jurisdiction invoked
Sections 3, 3A & 63(e) of the Civil Procedure Act (Cap 21), Order 42 rule 6, Order 50(6), Order 51 rule 1 of the Civil Procedure Rules

Relief refused

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Stay of execution of the order dated 30.10.2024

The order sought to be stayed was a negative order dismissing the appellant's earlier application; the court did not order any party to do or refrain from doing anything, so there was nothing to stay

p. 2

Costs

Dismissed with no order as to costs

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.

The court did not order any of the parties to do or refrain from doing any act or thing by its ruling dated 30.10.2024.
p. 2Nature of a negative order
The court takes the view that there is nothing to be stayed in the circumstances.
p. 2Nothing to stay
As a result, the same is hereby dismissed with no order as to costs.
p. 2Final orders

Issues in the judgment

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minor

The judgment does not expressly identify the court or the case number; the court name is inferred only from the coram and station ('RULING DATED AND SIGNED AT MOMBASA')

minor

Typographical error in the date of the supporting affidavit

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, "Mwango & 2 others v Maonga & another (Environment and Land Appeal E011 of 2024) [2025] KEELC 785 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/785/eng@2025-02-20

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