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ELCDismissedNotice of Motion dated 4th July, 2024 (suit number not stated in judgment)

Masibo & another v Were & 5 others (Environment and Land Case 27 of 2021) [2025] KEELC 4376 (KLR)

Environment and Land Court
28 May 2025
NYNyukuri
2,290 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court in Kakamega refused to stop collection of taxed costs, ruling that a 'negative order' dismissing a case gives nothing to stay.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 4th July 2024 in which the plaintiffs, the applicants, sought a stay of execution of a certificate of costs dated 14th December 2023 and consequential orders arising from the court's ruling of 20th June 2024, pending an intended appeal to the Court of Appeal. The applicants argued they had an arguable appeal, that the deceased's estate's assets could not easily be converted to cash, and that the first applicant was unemployed and unable to pay the assessed costs of Kshs. 261,555/=. The respondents opposed, contending res judicata, that costs follow the event, that they could refund costs if the appeal succeeded, and that the appeal was against a negative order striking out the applicants' reinstatement application. The court framed two issues: whether the application was res judicata given the 20th June 2024 ruling, and whether stay pending appeal was merited. On the first, the court held the issues were different - the earlier ruling dealt with arresting taxation before it occurred, which had become moot - so the application was not barred. On the merits, the court found Order 42 Rule 6 inapplicable because the certificate of costs sought to be stayed was not the order appealed against; the order appealed against was negative, leaving nothing to stay. Even exercising inherent jurisdiction under section 63(e), the court rejected the applicants' inability-to-pay argument as bad faith, unjustified, contradictory and illogical, noting costs follow the event under section 27 and that the respondents' undertaking to refund was unrebutted. The motion was dismissed with costs to the respondents.

Questions the Court framed

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

  1. 1.whether the instant application is res judicata in view of the ruling dated 20th June 2024
  2. 2.whether the applicants deserve orders of stay of execution of the certificate of costs pending hearing and determination of the appeal against the ruling of 20th June 2024 dismissing their application for reinstatement of suit

Key legal issues

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01

Res judicata

Holding

The application was not res judicata because the issues it raised differ from those determined in the ruling of 20th June 2024

Reasoning

In the earlier application the prayers concerned arresting or standing over taxation before it occurred; the taxation was subsequently done, rendering that issue moot. The present application seeks stay of execution of the certificate of taxation, a distinct issue arising after a change of circumstances, so the doctrine does not bar it.

p. 4
02

Stay of execution pending appeal under Order 42 Rule 6

Holding

Stay was refused; the rules do not apply because the certificate of costs sought to be stayed is not the order appealed against, and even under the court's inherent jurisdiction no basis for stay was shown

Reasoning

The applicants appealed against the ruling of 20th June 2024 striking out their reinstatement application, not against the taxation. That order is negative, leaving nothing to stay. Their inability-to-pay argument was rejected since costs follow the event under section 27 of the Civil Procedure Act, and respondents undertook to refund if the appeal succeeded.

p. 5

Legal principles established

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  • An order striking out an application is a negative order and there is essentially nothing to stay in respect of it
  • Stay under Order 42 Rule 6 does not lie where the order sought to be stayed is different from the order appealed against

Court orders

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  1. 1.The Notice of Motion dated 4th July 2024 is dismissed
  2. 2.Costs of the application awarded to the respondents

The bench

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

NY
majority

Wrote the judgment

Jurisdiction invoked
Sections 1A, 1B and 63(e) of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules

Relief refused

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Stay of execution of the certificate of costs dated 14th December 2023 pending the intended appeal

No appeal against the taxation; the order appealed against (striking out the application of 28th November 2023) is a negative order with nothing to stay; applicants' claim of inability to pay rejected as bad faith

p. 5

Costs

The application dated 4th July 2024 was dismissed with costs to the respondents.

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 instant application is not res judicata
p. 4res judicata - distinct issues
the application herein dated 4th July 2024 does not fall within the ambit of Order 42 Rule 6 of the civil Procedure Rules since the order sought to be stayed is difierent from the order appealed against
p. 5stay of execution - scope of Order 42 Rule 6
the decision appealed against is the order striking out their application dated 28th November 2023, which is a negative order and therefore there is essentially nothing to be stayed
p. 5negative orders not stayable
In the premises, I find no merit in the application dated 4th July 2024 which I hereby dismiss with costs to the respondents.
p. 5final orders - dismissal with costs

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, "Masibo & another v Were & 5 others (Environment and Land Case 27 of 2021) [2025] KEELC 4376 (KLR)", Case Analysis (2025). Notice of Motion dated 4th July, 2024 (suit number not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4376/eng@2025-05-28

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