Loyor v Lomer (Environment and Land Appeal E004 of 2026) [2026] KEELC 2977 (KLR)

The trial court simply dismissed the applicant's application for review/joinder and granted no positive order. A dismissal order cannot be enforced and is not capable of execution, save for costs. Following Mwanthii & Others v Mukami and Cooperative Bank of Kenya Ltd, stay does not lie against negative orders. The applicant's grievance with the ruling is a matter for appeal, not a stay.

Relying on James Wangalwa v Agnes Naliaka Cheseto and Samvir Trustees v Guardian Bank, the court held that execution per se is not substantial loss and the applicant must show the status of the substratum of the appeal, developments, or loss with empirical and scientific evidence. The supporting affidavit made only spurious allegations instead of establishing loss such that the appeal would be rendered nugatory.

The court examined the authorities on plot allocation and equal equities (Mburu v Kariuki, Karenge v Mbogo, Wreck Motors, Dr. N.K. Ngo'k, Torino Enterprises) and found the trial court applied current jurisprudential trends. The applicant lacked capacity as she had no letters of administration; the facts on capacity were within her knowledge and did not warrant review. The attack on the primary judgment without an appeal was impermissible.

Citing Alfred Njau & 5 Others v City Council of Nairobi on locus standi, the court noted the trial court's ruling found the person named in the ad litem annexure was the applicant herself, an active participant in the trial, who ought to have exercised due diligence. The facts of her lack of capacity were within her knowledge and could not amount to discovery of new and important evidence for review.