Republic v Deputy County Commisioner, Makueni & 3 others; Maithya & another (Interested Parties); Matolo (Ex parte Applicant) (Environment and Land Judicial Review Case E021 of 2022) [2025] KEELC 7709 (KLR)
The bottom line
#You cannot get a stay of execution for a judgment that merely dismisses your case—only the costs awarded against you can be stayed, and only with proof of real loss.
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 Ex-parte Applicant has demonstrated merit in their application for the issuance of an order for stay of execution
Key legal issues
#Whether the applicant demonstrated substantial loss and absence of unreasonable delay under Order 42 Rule 6
The application fails because the judgment being appealed is a negative order; the only enforceable element is costs, and payment of those costs would not cause substantial loss or render the intended appeal nugatory
The court found that the applicant was not appealing against the taxed costs but against the dismissal of his judicial review case. Following Kanwal Sarjit Singh Dhiman and Western College, a dismissal is a negative order incapable of execution except as to costs. Without evidence that the Interested Parties could not refund the costs, no substantial loss was demonstrated, so stay was refused.
Legal principles established
#- An order that merely dismisses a suit is a negative order incapable of execution save in respect of costs only
Court orders
#- 1.The application for stay of execution dated 5th December, 2024 was dismissed
- 2.Costs of the application awarded to the Interested Parties
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 42 Rule 6(1) and (2) of the Civil Procedure Rules, 2010
Relief refused
#Order of stay of execution of the ruling delivered on 15/10/2024 and the certificate of taxation issued on 19/11/2024 pending the intended appeal
The Applicant was not appealing against the taxed costs but against the dismissal of the judicial review case; a dismissal is a negative order incapable of execution save as to costs, and payment of costs would not render the appeal nugatory
Costs
Application dismissed with costs to the Interested Parties
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 should the Applicant pay costs to the Interested Parties, they will not refund the same. This being the case, I find that the Applicant’s application lacks merit. The same is dismissed with costs to the Interested Parties.
It is manifestly clear that the only enforceable part of the judgment in favour of the Interested Parties was on the aspect of costs which the Ex-parte Applicant was condemned to pay.
Substantial loss in its various forms is the cornerstone of both jurisdictions for granting a stay. That is what has to be prevented.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Republic v Deputy County Commisioner, Makueni & 3 others; Maithya & another (Interested Parties); Matolo (Ex parte Applicant) (Environment and Land Judicial Review Case E021 of 2022) [2025] KEELC 7709 (KLR)", Case Analysis (2025). Notice of Motion dated 5th December, 2024 (judicial review cause, judgment of 6th March, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/7709/eng@2025-11-06
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.