Titus Kitonga and Nasim Mulandi Kitonga vs Hashtag Biz Hub Company Ltd
The bottom line
#A Kenyan court refused to pause an eviction order because orders requiring someone to vacate property cannot be stayed, even when the appeal looks strong.
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 Respondent/Applicant has satisfied the legal conditions for the grant of a stay of execution pending appeal under Order 42, Rule 6 of the Civil Procedure Rules.
- 2.Who should bear the costs of the Application?
Key legal issues
#Delay in filing the application
No delay; the motion was filed on 1st July 2026, within the 60-day period granted by the judgment
The judgment of 19th June 2026 granted 60 days to vacate. The notice of motion dated 1.7.2026 was filed on the same day, well within one year under Order 42 Rule 6, so the application was made without unreasonable delay.
Jurisdiction of the court to entertain the stay application despite functus officio
The court retains residual jurisdiction to entertain ancillary matters including stay of execution pending appeal
Relying on Atancha v Lecourt karam, which quoted the Supreme Court in Raila Odinga, the court held that functus officio does not bar collateral or ancillary matters such as stay applications, which do not amount to re-determination of the merits.
Whether the order sought to be stayed is capable of being stayed
The order directing vacatur is a negative order incapable of being stayed
Following Co-operative Bank of Kenya Ltd v BIFU (Kenya) and Kaushik Panchamatia v Prime Bank, the court held that an order requiring a party to vacate and give up possession is negative in nature and cannot be stayed, notwithstanding satisfaction of the Order 42 Rule 6 conditions.
Substantial loss and arguability of the intended appeal
Substantial loss was demonstrated and the intended appeal raises a triable issue, but the negative-order bar prevails
The court accepted that eviction and possible impossibility of reinstatement would constitute substantial loss, and that the draft memorandum of appeal on jurisdiction raised a bona fide arguable issue; however, the conjunctive conditions could not cure the incapability of staying a negative order.
Sufficient security
The applicant demonstrated willingness to provide security, satisfying that condition
The supporting affidavit showed good faith and willingness to provide security for due performance of the decree on terms dictated by the court, complying with Order 42 Rule 6.
Legal principles established
#- The functus officio doctrine does not bar a court from addressing ancillary matters such as applications for stay of execution pending appeal
- The conditions for stay of execution under Order 42 Rule 6 are conjunctive, not disjunctive
- A negative order is incapable of being stayed
Court orders
#- 1.The application dated July 1, 2026 is dismissed.
- 2.Each party to bear their own costs of the application.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court at Nairobi
- Nairobi Chief Magistrate Civil Suit No. 4665 of 2019
- Jurisdiction invoked
- Articles 23(c), 40, 48, 50 and 159 of the Constitution; Sections 1A, 1B and 3A of the Civil Procedure Act; Order 42 Rule 6 of the Civil Procedure Rules
Relief refused
#Stay of execution of the judgment, decree and consequential orders of 19th June 2026 pending hearing of the application and the intended appeal
The order sought to be stayed is a negative order (vacant possession) which cannot be stayed
Stay of the order directing the Respondent/Applicant to vacate L.R. No. NAIROBI/BLOCK TASSIA-II-97/0794/088
Same negative-order bar; applicant directed to pursue relief in the Court of Appeal
Costs
Each party is ordered to bear their own costs of the application.
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.
It is however settled that the doctrine does not bar a court from addressing ancillary, incidental, or collateral matters, such as correction of clerical errors, taxation of costs, enforcement mechanisms, or applications for stay of execution pending appeal, which do not amount to a re-determination of the merits.
It trite that prerequisite conditions for granting a stay of execution pending appeal or intended appeal under Order 42 Rule 6 of the Civil Procedure Rules, 2010 are conjunctive and not disjunctive
Despite the Applicant satisfying the conditions for granting a stay of execution pending hearing and determination of intended appeal, the order sought is against a negative order-contrary to the principle that a negative order cannot be stayed.
The final disposition of the court regarding the application dated July 1,2026 is that the application is dismissed with each party to bear their own costs.
Issues in the judgment
#Venue inconsistency: cause title says Nairobi Milimani but delivery is at Voi
Party name inconsistency between cause title and replying affidavit
Judgment date anomaly: case number ELCLA/E036/2025 but judgment 'delivered on 19th June 2026'
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Titus Kitonga and Nasim Mulandi Kitonga vs Hashtag Biz Hub Company Ltd", Case Analysis (2026). ELCLA/E036/2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2026/6073/eng@2026-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.