Achieng (Suing as the Lawful Attorney of Modricks Odindo Asimba) ((Suing as the Lawful Attorney of Modricks Odindo Asimba)) v Wells Oil Limited & 2 others; Ochema & another (Third party) (Environment and Land Appeal E028 of 2025) [2025] KEELC 4940 (KLR)
The bottom line
#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 temporary injunction and/or stay can be granted restraining enforcement of a judgment that merely dismissed the applicant's claim (a negative order)
- 2.Whether the applicant demonstrated imminent execution or enforcement steps
Key legal issues
#Enforceability of a negative order for purposes of stay or injunction pending appeal
A dismissal is a negative order incapable of enforcement; no stay or injunction can issue against it
The court noted it was common ground the trial court merely dismissed the appellant's claim. Relying on Western College of Arts and Applied Sciences v E P Oranga, it held execution can only lie in respect of costs. Since there was no evidence of steps towards recovery of costs or imminent execution, there was nothing to restrain and the application lacked merit.
Legal principles established
#- A stay or injunction cannot issue in respect of a negative order (dismissal of a suit), as there is nothing to enforce or restrain
Court orders
#- 1.Application dismissed
- 2.Costs to abide the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court (Kisumu)
- KISUMU MC ELC NO. 109 OF 2019
- Jurisdiction invoked
- Section 10 of the Judicature Act Cap 8, Part 1 Rule 2(2)(a), 3(1) and (2) of the High Court Practice Rules and Section 3A of the Civil Procedure Act
Relief refused
#Temporary injunction and/or stay restraining the Respondents from taking enforcement steps based on the judgment of 7th April 2025 pending appeal
The judgment dismissed the appellant's claim and is a negative order not capable of enforcement or execution; no evidence of imminent execution or steps towards recovery of costs
Costs
Costs to abide the appeal
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.
There is no evidence that any steps have been taken towards recovery of the costs awarded. There is no evidence of imminent execution.
The court finds that the application lacks merit. Application is dismissed. Costs to abide the appeal.
An execution can only be in respect of costs…..
Issues in the judgment
#Typographical errors in judgment text ('fiowing' for 'flowing', 'afiect' for 'affect', 'is not capable' for 'is'/'not capable' syntax)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Achieng (Suing as the Lawful Attorney of Modricks Odindo Asimba) ((Suing as the Lawful Attorney of Modricks Odindo Asimba)) v Wells Oil Limited & 2 others; Ochema & another (Third party) (Environment and Land Appeal E028 of 2025) [2025] KEELC 4940 (KLR)", Case Analysis (2025). Chamber Summons application dated 14th April 2025, arising from KISUMU MC ELC NO. 109 OF 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4940/eng@2025-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.