Mghanga & 2 others v Mwakesi (Environment and Land Appeal E018 of 2024) (Environment and Land) [2025] KEELC 7278 (KLR)
The bottom line
#The Environment and Land Court in Voi ruled it cannot stay its own dismissal of an appeal — anyone seeking a stay must go straight to the Court of Appeal.
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 court has jurisdiction to grant a stay of execution of its own judgment dismissing the appeal, given that it is functus officio
- 2.Whether there are positive orders capable of being stayed
Key legal issues
#Whether the court is functus officio to hear the stay application
Yes. Having conclusively determined the appeal and dismissed it, the court had no jurisdiction to revisit whether the applicants satisfied the conditions for stay.
The court held that all issues of fact and law on the appeal had been fully canvassed and considered, and the appeal was dismissed on its merits. Having discharged that duty, the court became functus officio. Court orders are not given in vain, and where a dismissal produced no positive orders, there is nothing capable of execution or stay. Any stay pending appeal lies before the Court of Appeal pursuant to rule 5(2)(b) of the Court of Appeal Rules 2022.
Whether there are positive orders capable of being stayed
No positive orders were granted; the appeal was simply dismissed, so there is nothing to stay.
The court accepted the Respondent's submission that the order was negative in nature. Although the judgment of 29th May 2025 ordered the Appellants to vacate the suit property, the court reasoned that since the appeal itself was dismissed with no positive orders, no orders issued by the court were capable of being executed, and thus the stay application failed on this jurisdictional ground.
Legal principles established
#- A court that has heard and determined an appeal and rendered judgment is functus officio and cannot entertain an application for stay of execution of its own dismissal of that appeal.
- There are no orders capable of being executed where a court simply dismissed the appeal, as no positive orders were granted.
Court orders
#- 1.The application dated 29th June 2025 is dismissed with an order that each party to bear own costs of the said application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Subordinate court (appeal previously heard and dismissed by this court)
- Jurisdiction invoked
- Order 42 Rule 6(2) of the Civil Procedure Rules invoked for stay of execution
Relief refused
#Stay of execution of the judgment and decree delivered on 29th May 2025 pending appeal at the Court of Appeal
The court is functus officio having heard and determined the appeal, and there are no positive orders capable of being stayed
Costs
Each party to bear their own costs of the said application
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.
In conclusion, it is the finding of this court that the said application dated 29th June 2025 lacks merit and the same is dismissed with an order that each party to bear own costs of the said application.
In view of the above findings, this court has no jurisdiction to delve into the issue whether the applicants have satisfied the conditions for grant of an order of stay of execution pending appeal or intended appeal since court orders are not given in vain.
having discharged its duty on the appeal which was before it, this court is functus oficio. Moreover, there were no positive orders granted by the court as the court simply dismissed the appeal.
Issues in the judgment
#The affidavit supporting the Applicants' application is described as sworn by the '1st Respondent', which conflicts with the parties' designation elsewhere in the judgment.
The judgment refers to the Applicants as 'Appellants' while they pursued a stay in the same court whose appeal they lost; the Respondent is described both as opposing and as the party the applicants appealed against.
The parties' full names and the case number are not stated in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mghanga & 2 others v Mwakesi (Environment and Land Appeal E018 of 2024) (Environment and Land) [2025] KEELC 7278 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7278/eng@2025-10-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.