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ELCDismissedNot stated in the judgment

Mghanga & 2 others v Mwakesi (Environment and Land Appeal E018 of 2024) (Environment and Land) [2025] KEELC 7278 (KLR)

Environment and Land Court
23 October 2025
1,047 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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This ruling of the Environment and Land Court at Voi (E. K. Wabwoto, J) determined the Appellants' application dated 29th June 2025 seeking a stay of execution of the court's own judgment and decree delivered on 29th May 2025, which had dismissed their appeal and ordered them to vacate suit property L.R Mgange/Dawida/208 within 90 days, failing which eviction and demolition would issue. The Applicants, who occupy the land as ancestral property and intend to appeal to the Court of Appeal in Mombasa, argued they met the conditions in Order 42 Rule 6(2) of the Civil Procedure Rules: the application was filed without delay, they would suffer substantial loss as elderly occupants, and being paupers they could not furnish security. The Respondent opposed, contending the court was functus officio, that the dismissal of the appeal was a negative order incapable of being stayed, and that any stay pending appeal lay before the Court of Appeal under rule 5(2)(b) of the Court of Appeal Rules 2022. The court agreed with the Respondent, holding that having heard and determined the appeal on its merits and dismissed it, it was functus officio; no positive orders had been granted, so nothing was capable of execution or stay. The application was dismissed with each party bearing their own costs. Reliance by the Respondent on Buchunju v Muyundo, Kamwara v Mwenda and Dickson Muricho Muriuki was noted but treated as party submissions.

Questions the Court framed

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

  1. 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. 2.Whether there are positive orders capable of being stayed

Key legal issues

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01

Whether the court is functus officio to hear the stay application

Holding

Yes. Having conclusively determined the appeal and dismissed it, the court had no jurisdiction to revisit whether the applicants satisfied the conditions for stay.

Reasoning

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.

p. 3
02

Whether there are positive orders capable of being stayed

Holding

No positive orders were granted; the appeal was simply dismissed, so there is nothing to stay.

Reasoning

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.

p. 3

Legal principles established

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  • 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

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  1. 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

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

majority

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

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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

p. 3

Costs

Each party to bear their own costs of the said application

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.

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.
p. 3Final orders - dismissal of the stay 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.
p. 3Lack of jurisdiction - functus officio
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.
p. 3Functus officio and negative orders

Issues in the judgment

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minor

The affidavit supporting the Applicants' application is described as sworn by the '1st Respondent', which conflicts with the parties' designation elsewhere in the judgment.

minor

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.

minor

The parties' full names and the case number are not stated in the judgment.

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, "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.