Kimundi v Kamuya (Environment and Land Appeal E016 of 2024) [2025] KEELC 7075 (KLR)
The bottom line
#Kenya's Environment and Land Court ruled you cannot appeal-stay a judgment that simply dismissed your suit — only costs orders remain executable.
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 Applicant has demonstrated merit in his application for the issuance of an order for stay of execution
Key legal issues
#Whether stay of execution pending appeal can issue in respect of a judgment that merely dismissed a suit
No - a dismissal of a suit yields a negative order which is incapable of execution except for costs, and therefore cannot be stayed
Applying Order 42 Rule 6(1) and (2), the court noted the lower court dismissed the plaintiff's suit with costs, requiring no party to do or refrain from doing anything save payment of costs. Following Kenya Shell Ltd v Kibiru, Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah, Western College v Oranga and Registered Trustees, Kenya Railways Staff Retirement Benefits Scheme v Millimo, the court held negative orders cannot be stayed and payment of costs does not demonstrate substantial loss.
Legal principles established
#- A negative order dismissing a suit is incapable of execution save in respect of costs, and is incapable of being stayed
Court orders
#- 1.The Notice of Motion dated 7th January, 2025 seeking stay of execution of the judgment of 12th September, 2024 is dismissed
- 2.Costs of the application awarded to the Respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Principal Magistrates Court Kilungu
- Kilungu MCELC No. E005/2023
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules, 2010 (appellate jurisdiction over appeals from the Principal Magistrates' Court)
Relief refused
#Stay of execution of the judgment delivered on 12th September 2024 and all consequential orders including execution for costs
The dismissal of the Applicant's suit was a negative order incapable of being stayed; execution for costs is not a ground for stay
Temporary injunction restraining the Respondent from entering, interfering with or dealing with the Appellant's portion of the suit premises
It fell with the main application, which was found devoid of merit
Costs
The application is dismissed with costs to the Respondent.
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.
The dismissal of the Applicant's suit being a negative order incapable of being stayed, execution for costs is not a reason for stay of the same.
The Applicant has not shown that if costs are paid to the Respondent he will not recover the same from the Respondent. I therefore find that the Applicant's application is devoid of merit. The same is dismissed with costs to the Respondent.
Substantial loss in its various forms is the cornerstone of both jurisdictions for granting a stay. That is what has to be prevented.
Issues in the judgment
#The judgment does not state the names of the parties or its own case number; the parties and lower court case number are identifiable only from the narrative
Paragraph numbering in the judgment restarts/duplicates (grounds list numbered 1-6, then narrative restarts at 3)
The affidavit is sworn by an advocate, Vincent M. Muia, apparently on behalf of the Applicant, without the judgment explaining the capacity in which the Applicant is described
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimundi v Kamuya (Environment and Land Appeal E016 of 2024) [2025] KEELC 7075 (KLR)", Case Analysis (2025). Kilungu MCELC No. E005/2023 (Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7075/eng@2025-10-16
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.