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ELCDismissedNot stated in the judgment

Republic v Cabinet Secretary Ministry of Lands and Physical Planning & 4 others; Musau & another (Interested Parties); Kisaulu (Representative of John K Mutungi (Deceased)) & another (Ex parte) (Environment and Land Judicial Review Case E003 of 2023) [2025] KEELC 8370 (KLR)

High Court of Kenya (Environment and Land Court jurisdiction, judicial review)
2 December 2025
EOE. O. Obaga
1,852 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The High Court refused to pause execution of its judgment because a dismissal with each party bearing its own costs is a negative order that cannot be stayed.

What this practically means

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Executive summary

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This is a ruling on a Notice of Motion dated 18th February 2025 in which the Ex-parte Applicants sought a stay of execution of the judgment of 12th February 2025, which had dismissed their judicial review application concerning land adjudication of the suit property (parcels in Makueni/Kalango). The Applicants, supported by both Interested Parties, argued under Order 42 Rule 6(2) of the Civil Procedure Rules that they risked substantial loss if the 5th Respondent dealt adversely with the suit property, that the application was filed without delay, and that the intended appeal would be rendered nugatory. The 5th Respondent opposed, submitting that the judgment was a negative order incapable of execution since neither party was ordered to do anything or refrain from anything, and thus no decree capable of being stayed existed. The court framed a single issue: whether the Applicants had demonstrated merit for a stay. Applying Order 42 Rule 6(1) and (2) and the authorities on negative orders - Kenya Shell Ltd v Kibiru, Kanwal Sarjit Singh Dhiman, Western College of Arts and Applied Sciences, and Registered Trustees, Kenya Railways Staff Retirement Benefits Scheme - the court agreed that its prior judgment dismissing the judicial review application with each party bearing its own costs was a negative order. No substantial loss was demonstrated and no stay was capable of being granted. The application was dismissed with costs.

Questions the Court framed

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

  1. 1.Whether the Ex-parte Applicants have demonstrated merit in their application for the issuance of an order for stay of execution

Key legal issues

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01

Whether stay of execution can issue over a judgment that dismissed the judicial review application

Holding

No stay can issue because the judgment of 12th February 2025 was a negative order incapable of execution, and no substantial loss was demonstrated

Reasoning

The court examined its own judgment dismissing the judicial review application with each party bearing its own costs. Citing Kanwal Sarjit Singh Dhiman, Western College of Arts and Applied Sciences and Registered Trustees, Kenya Railways Staff Retirement Benefits Scheme, it reaffirmed that negative orders cannot be stayed. Since neither party was ordered to do or refrain from doing anything, no decree capable of execution exists and the applicants could not demonstrate substantial loss.

p. 4

Legal principles established

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  • A negative order - where the court does not order any party to do anything or refrain from doing anything - is incapable of execution and cannot be stayed

Court orders

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  1. 1.The application for stay of execution is dismissed
  2. 2.Costs of the application to the 5th Respondent (dismissed with costs)

The bench

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

EO
majority

Wrote the judgment

Jurisdiction invoked
Order 42 Rule 6(1) and (2) of the Civil Procedure Rules

Relief refused

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Stay of execution of the judgment delivered on 12th February, 2025 pending intended appeal

The judgment was a negative order - neither party was ordered to do anything or refrain from doing anything - so there is no decree capable of being stayed and no substantial loss demonstrated

p. 4

Costs

The application is dismissed with costs.

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.

It is manifestly clear that in dismissing the Ex-parte Applicants’ judicial review application with orders that each party bears its own costs, a negative order ensued.
p. 4nature of the judgment sought to be stayed
Negative orders cannot be stayed.
p. 5position on stay of negative orders
In the circumstances of the case, the Ex-parte Applicants have not demonstrated merit in the application for stay of execution. The application is hereby dismissed with costs.
p. 5final orders/disposition

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, "Republic v Cabinet Secretary Ministry of Lands and Physical Planning & 4 others; Musau & another (Interested Parties); Kisaulu (Representative of John K Mutungi (Deceased)) & another (Ex parte) (Environment and Land Judicial Review Case E003 of 2023) [2025] KEELC 8370 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/8370/eng@2025-12-02

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.