Nabwana v Makokha (Environment and Land Appeal E031 of 2025) [2026] KEELC 3820 (KLR)
The bottom line
#A Kenyan court refused to pause a striking-out order on appeal because there was nothing to execute except unquantified costs.
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 applicant has made up a case for being granted an order of stay of the decision of the lower court pending appeal
Key legal issues
#Whether the order of the trial court striking out the suit with costs is capable of being stayed pending appeal
The court found that only the order for costs was capable of execution; since no bill of costs had been taxed or amount adjudged, and no substantial loss was demonstrated, no stay could issue
The court observed that the trial magistrate struck out the suit and awarded costs but issued no order requiring any party to do or refrain from doing anything. Following Chege v Gachora, Cooperative Bank of Kenya Ltd v BIFU, Western College of Arts v Oranga and Jennifer Akinyi Osodo, such a negative order cannot be stayed. The only executable order was for costs, whose quantum was unascertained, and the applicant failed to show how payment of costs would render his appeal nugatory.
Whether the applicant's claim that respondents were demolishing his house justified a stay
Rejected, because no eviction order was issued in the respondents' favour and the correct remedy would have been an injunction pending appeal
The court noted from the pleadings that it was the applicant who had sought eviction against the respondent in the lower court. No eviction order issued in favour of the respondents, so there was no order on which a stay could hinge. Stay of execution and injunction pending appeal rest on different legal principles, and the applicant pursued the wrong remedy.
Legal principles established
#- Stay of execution cannot be ordered against a negative order; a dismissal of a suit with costs leaves nothing capable of execution other than costs
- Where a party seeks to stop threatened eviction/demolition pending appeal, the proper application is for injunction pending appeal, not stay of execution
Court orders
#- 1.The chamber summons application dated 5th January 2026 is dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Magistrates' Court (Busia)
- Busia MCELC/E011 of 2025
- Jurisdiction invoked
- Order 42 rule 6(1) of the Civil Procedure Rules (stay of execution pending appeal)
Relief refused
#Stay of execution of the trial court's decision (order for costs) pending appeal
The trial court's order was a negative order incapable of execution; only the costs order was executable, no amount had been ascertained by way of bill of costs, and the applicant failed to demonstrate substantial loss or that the appeal would be rendered nugatory
Costs
Costs of the application awarded to the respondents
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.
Consequently, I find the chamber summons application dated 5th January 2026 to be not only misconceived but also ill-advised and I dismiss it with costs to the respondents.
It is trite law that stay of execution cannot be ordered against negative orders.
The High Court has not ordered any of the parties to do anything, or to pay any sum. There is nothing arising out of the High Court judgment for this Court, in an application for stay
An order for stay of execution (pending appeal) is ordinary an interim order which seeks to delay performance of positive obligations that are set out in a decree as a result of a judgment.
the right application would be one for injunction pending appeal and not an application for stay
Issues in the judgment
#Judgment typographical/transcription errors in quoted passages
Dates of events postdate the judgment's own chronology (judgment of 9th December 2025, application of 5th January 2026, ruling of 10th June 2026) and the trial judgment is quoted striking the suit out 'for want of jurisdiction under section 18(2) of the Land Registration Act' - unusual provision pairing that is not clarified in the ruling
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nabwana v Makokha (Environment and Land Appeal E031 of 2025) [2026] KEELC 3820 (KLR)", Case Analysis (2026). Not stated in judgment (chamber summons dated 5th January 2026, arising from appeal against Busia MCELC/E011 of 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/3820/eng@2026-06-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.