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ELCOtherNot stated in the judgment

Thambo v Muketha (Environment and Land Appeal E034 of 2023) [2026] KEELC 2449 (KLR)

Environment and Land Court
27 April 2026
BEB M Eboso
263 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~1 min to read original · ~4 min brief

The bottom line

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A Kenyan court confirmed it cannot stay a 'negative' judgment like a dismissed appeal — you can only stay orders requiring someone to do something.

What this practically means

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Executive summary

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This ex-tempore ruling of the Environment and Land Court at Meru, delivered by B M Eboso (ELC Judge) on 27 April 2026, dealt with the appellant's notice of motion dated 23 December 2025. The appellant, appearing in person, sought a stay of execution of the judgment of the same court dated 16 September 2025 and the subsequent decree, pending the hearing and disposal of an intended second appeal to the Court of Appeal. The respondent, represented by Mr Kaume, opposed the application. The court first examined the question of its own jurisdiction. It noted that, in the underlying matter, it had exercised appellate jurisdiction as a first appellate court, found no merit in the appeal, and dismissed it - thereby issuing a negative order and decree. Relying on the binding Court of Appeal authority of Western College of Arts & Applied Science v Oranga & others [1976] KLR 63, and the settled principle that a negative order does not attract a stay of execution, the court held that it had no jurisdiction to grant a stay against a negative order. It accordingly struck out the application dated 23 December 2025 in its entirety. Applying the general principle in section 27 of the Civil Procedure Act that costs follow the event, the court ordered the appellant/applicant to bear the costs of the application. The intended stay and the route to a second appeal therefore remain unassisted by any order of the court, with the respondent's decree left undisturbed.

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 and decree where the decree is a negative order
  2. 2.Whether costs should follow the event in the striking out of the application

Key legal issues

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Whether a stay of execution can issue in respect of a negative decree

Holding

A negative order does not attract an order of stay of execution; a court has no jurisdiction to grant a stay against a negative order

Reasoning

The court, sitting as a first appellate court, had dismissed the appeal and thus issued a negative decree. Relying on the Court of Appeal's decision in Western College of Arts & Applied Science v Oranga & others [1976] KLR 63, which binds this court, the court held that a negative decree is incapable of being stayed because there is nothing to execute, and therefore struck out the motion.

p. 2

Legal principles established

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  • A negative order/decree does not attract an order of stay of execution

Court orders

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  1. 1.The application dated 23/12/2025 is struck out
  2. 2.The appellant/applicant shall bear costs of the application

The bench

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

BE
majority

Wrote the judgment

On appeal from
null (the judgment references this court's own prior judgment of 16/9/2025 dismissing an appeal; no lower court is identified in the ruling)
Jurisdiction invoked
Appellate jurisdiction of the Environment and Land Court as a first appellate court; section 27 of the Civil Procedure Act cited on costs

Relief refused

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Stay of execution of the judgment dated 16/9/2025 and the subsequent decree pending a second appeal to the Court of Appeal

The decree is a negative order which does not attract a stay of execution; the court lacks jurisdiction to grant a stay against a negative order

p. 2

Costs

The appellant/applicant shall bear costs of the 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.

Our courts have umpteen times emphasized that a negative order does not attract an order of stay of execution.
p. 2stay of execution - negative orders
In the circumstances, the court finds that it has no jurisdiction to grant a stay order against a negative order. Consequently, the application dated 23/12/2025 is struck out.
p. 2final orders - striking out
In tandem with the general principle in Section 27 of the Civil Procedure Act, the appellant/applicant shall bear costs of the application.
p. 2costs

Issues in the judgment

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minor

The notice of motion is dated 23/12/2025 and the judgment is dated 27 April 2026, but the underlying judgment was dated 16/9/2025 - dates appear internally consistent but are unusual (future-dated); no contradiction found

material

The case number, suit title and the parties' full names are not stated anywhere in the ruling; the only party identified by name is a person appearing in person

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, "Thambo v Muketha (Environment and Land Appeal E034 of 2023) [2026] KEELC 2449 (KLR)", Case Analysis (2026). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/2449/eng@2026-04-27

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