Ayado (Suing on her own Behalf as Married Woman and as the Administrator of the Estate of Ndege Jowi - Deceased) v Wangwe & another (Environment and Land Case 002 of 2023) [2025] KEELC 6671 (KLR)
The bottom line
#The Environment and Land Court refused to pause a land case pending appeal, ruling that a dismissal order cannot be 'stayed' and delaying trials requires exceptional reasons.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the 2nd defendant/applicant's Notice of Motion dated 27th January 2025 seeking stay of execution of the ruling and order of 17th December 2024 and stay of further proceedings pending appeal is merited
- 2.Who should bear the costs of the application
Key legal issues
#Whether the order of 17th December 2024 was capable of being stayed
The order was negative in nature - it merely dismissed the applicant's applications with no order as to costs - and the amendments had already taken effect; there was nothing to stay and the prayers were overtaken by events
The court examined the impugned order and found it merely dismissed the applicant's applications to expunge documents with no order as to costs. Relying on Western College v Oranga as adopted in Kaushik Panchamatia v Prime Bank, a negative order is incapable of execution. Further, the pleaded amendments had already been effected and perfected, so the applicant could not stay that which had already been overtaken by events.
Whether further proceedings in the suit should be stayed pending appeal
Stay of proceedings was refused because it is a drastic measure granted only in exceptional circumstances, no ground of the intended appeal was likely to be arguable, and no prejudice would result since the matter could be started de novo if the appeal succeeded
The court distinguished stay of proceedings from stay of execution, noting the former impinges on access to justice, timely disposal and fair trial, and attracts a higher and more stringent test. Article 159 of the Constitution and the Civil Procedure Act mandate timely disposal. Having reviewed the memorandum of appeal, the judge found no arguable ground, and any prejudice could be cured by a trial de novo if the appeal succeeded.
Legal principles established
#- A negative order, such as an order dismissing an application, is incapable of being stayed because there is nothing to execute
- Stay of proceedings is a drastic judicial action granted only in exceptional circumstances because it interferes with the right of access to justice and fair trial; the test is high and stringent
- Whether to stay proceedings pending appeal is a matter of judicial discretion to be exercised in the interest of justice, weighing the need for expeditious disposal, arguability of the intended appeal and expeditiousness of the application
Court orders
#- 1.The Notice of Motion dated 27th January 2025 is dismissed with costs to the respondent
- 2.The matter shall be mentioned on 16th October 2025 for compliance with Order 11 of the Civil Procedure Rules
- 3.Mention notice to issue
- 4.Each party shall bear their own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Article 159(2)(a) and (d) of the Constitution of Kenya, 2010; Section 63(e) of the Civil Procedure Act (Cap 21); Order 42 Rule 6 of the Civil Procedure Rules, 2010
Relief refused
#Stay of execution of the ruling and order of 17th December 2024 pending appeal
The impugned order was a negative order (dismissal of applications with no order as to costs) incapable of execution; the amendments had already taken effect and the prayers were overtaken by events
Stay of further proceedings in the suit pending appeal
Stay of proceedings is a drastic measure granted only in exceptional circumstances; none of the grounds in the memorandum of appeal were likely to be arguable and no prejudice would be occasioned by the matter proceeding
Costs
Application dismissed with costs to the respondent; however, the court also ordered that each party shall bear their own costs (internally inconsistent orders on costs)
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.
I concur with the plaintifi/applicant that there was nothing to stay given the nature of the order complained about by the 2nd defendant/applicant.
Stay of proceedings is a grave judicial action which seriously interferes with the right of a litigant to conduct his litigation. It impinges on right of access to justice, right to be heard without delay and overall, right to fair trial.
The upshot is that the application is lost. It is dismissed with costs to the Respondent.
Each party shall bear the own costs.
Issues in the judgment
#Conflicting costs orders in the final orders: paragraph 36 dismisses the application 'with costs to the Respondent' but paragraph 37 states 'Each party shall bear the own costs'
Internal contradiction in paragraph 35: the court states it is not convinced the suit should proceed to conclusion, contrary to its conclusion that proceedings should not be stayed
The plaintiff's grounds of opposition refer to the impugned ruling as dated 17th December 2025 while elsewhere it is 17th December 2024
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ayado (Suing on her own Behalf as Married Woman and as the Administrator of the Estate of Ndege Jowi - Deceased) v Wangwe & another (Environment and Land Case 002 of 2023) [2025] KEELC 6671 (KLR)", Case Analysis (2025). Environment and Land Case (not stated in excerpt; Notice of Motion dated 27th January 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/6671/eng@2025-09-30
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.