'
By a Notice of Motion dated 7th November 2025 brought under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 42 Rule 6 and Order 51 of the Civil Procedure Rules, 2020, the appellant seeks the following orders:
a) Spent.
b) Spent.
c) That this Honourable Court be pleased to issue orders of stay of execution of the ruling and/or orders of the Court issued on 31st October 2025 and any consequential orders thereto, to the extent that the respondent, his servants, agents, employees and/or persons acting under him, be restrained from interfering with or in any way dealing with the possession, occupation, tenants, licensees and/or use of Plot No. 18/66 Chaani pending the hearing and determination of the appeal.
d) That the OCS Changamwe Police Station, or the nearest police station, do ensure compliance with the orders sought.
e) That the costs of this application be provided for.
The application is supported by the grounds on its face and the affidavit of Sammy Mutavi sworn on 7th November 2025.
The applicant states that on 31st October 2025 the lower court delivered a ruling with which he is dissatisfied and has preferred an appeal. He contends that the appeal has high chances of success. He further avers that the respondent has started interfering with the suit property by disconnecting electricity supply and harassing tenants, hence the need for an order of stay pending appeal.
The respondent filed a Notice of Preliminary Objection dated 10th November 2025 contending that under Order 43 of the Civil Procedure Rules no automatic right of appeal exists from an order granting or refusing relief under an application for stay made pursuant to Order 42 Rule 6. The respondent further argues that since the appeal is incompetent for want of leave, there is no basis for granting stay.
I have considered the application, the supporting affidavit, the preliminary objection and the submissions on record. The issue for determination is whether the application has merit and what orders should be made.
The background is that on 31st October 2025, Hon. B. Kalo (CM) dismissed the appellant’s application for stay pending appeal, which application had been brought under Order 42 Rule 6 of the Civil Procedure Rules. Aggrieved by that ruling, the appellant filed a memorandum of appeal dated 7th November 2025 and subsequently lodged the present application.
The order the applicant seeks to stay is an order dismissing his application for stay. This is a negative order. I am guided by the decision in Western College of Arts and Applied Sciences v Oranga & Others (1976) KLR 63 , where the Court of Appeal stated:
“…But what is there to be executed under the judgment, the subject of the intended appeal? The High Court has merely dismissed the suit with costs. An execution can only be in respect of costs… The High Court has not ordered any of the parties to do anything or to refrain from doing anything or to pay any sum. There is nothing arising out of the High Court judgment for this Court in an application for stay to enforce or restrain by injunction.”
In view of the foregoing, a negative order is incapable of being stayed because there is nothing to stay. The temporary injunctive relief the applicant seeks is unrelated to the order issued by the lower court and is therefore extraneous. This Court lacks jurisdiction to grant such relief under the guise of stay pending appeal.
Section 75(1) of the Civil Procedure Act, read together with Order 43 of the Civil Procedure Rules, specifies the orders from which an appeal lies as of right or with leave of the Court. Order 43(1) sets out a list of orders appealable as of right, while Order 43(2) provides that appeals from all other orders may be preferred only with leave of the Court.
It is therefore clear that only orders expressly listed under Order 43(1) may be appealed from as of right. Any other order requires leave prior to filing an appeal.
In this case, the impugned ruling is one dismissing the applicant’s application seeking to review an earlier ruling delivered on 19th March 2024. That order does not fall within the category of orders appealable as of right under Order 43(1). Accordingly, the appellant was required to first obtain leave to appeal, which he did not do.
I therefore find that the memorandum of appeal dated 7th November 2025 was filed without leave and is incompetent. It is liable to dismissal under Section 79B of the Civil Procedure Act. Consequently, the present application, being founded on an incompetent appeal, equally fails and is dismissed with costs to the respondent.
DELIVERED, DATED AND SIGNED AT MOMBASA THIS 4TH DAY OF DECEMBER 2025.
Ruling delivered through the Microsoft Teams Online Platform.
WENDY KAGENDO MICHENI
JUDGE
In the presence of:
Mr. Marende Necheza for the Applicant
Mr. Mwakisha for the respondent
Brian , Court Assistant
'
By a Notice of Motion dated 7th November 2025 brought under Sections 1A, 1B and 3A of the Civil Procedure Act, Order 42 Rule 6 and Order 51 of the Civil Procedure Rules, 2020, the appellant seeks the following orders:
a) Spent.
b) Spent.
c) That this Honourable Court be pleased to issue orders of stay of execution of the ruling and/or orders of the Court issued on 31st October 2025 and any consequential orders thereto, to the extent that the respondent, his servants, agents, employees and/or persons acting under him, be restrained from interfering with or in any way dealing with the possession, occupation, tenants, licensees and/or use of Plot No. 18/66 Chaani pending the hearing and determination of the appeal.
d) That the OCS Changamwe Police Station, or the nearest police station, do ensure compliance with the orders sought.
e) That the costs of this application be provided for.
The application is supported by the grounds on its face and the affidavit of Sammy Mutavi sworn on 7th November 2025.
The applicant states that on 31st October 2025 the lower court delivered a ruling with which he is dissatisfied and has preferred an appeal. He contends that the appeal has high chances of success. He further avers that the respondent has started interfering with the suit property by disconnecting electricity supply and harassing tenants, hence the need for an order of stay pending appeal.
The respondent filed a Notice of Preliminary Objection dated 10th November 2025 contending that under Order 43 of the Civil Procedure Rules no automatic right of appeal exists from an order granting or refusing relief under an application for stay made pursuant to Order 42 Rule 6. The respondent further argues that since the appeal is incompetent for want of leave, there is no basis for granting stay.
I have considered the application, the supporting affidavit, the preliminary objection and the submissions on record. The issue for determination is whether the application has merit and what orders should be made.
The background is that on 31st October 2025, Hon. B. Kalo (CM) dismissed the appellant’s application for stay pending appeal, which application had been brought under Order 42 Rule 6 of the Civil Procedure Rules. Aggrieved by that ruling, the appellant filed a memorandum of appeal dated 7th November 2025 and subsequently lodged the present application.
The order the applicant seeks to stay is an order dismissing his application for stay. This is a negative order. I am guided by the decision in Western College of Arts and Applied Sciences v Oranga & Others (1976) KLR 63 , where the Court of Appeal stated:
“…But what is there to be executed under the judgment, the subject of the intended appeal? The High Court has merely dismissed the suit with costs. An execution can only be in respect of costs… The High Court has not ordered any of the parties to do anything or to refrain from doing anything or to pay any sum. There is nothing arising out of the High Court judgment for this Court in an application for stay to enforce or restrain by injunction.”
In view of the foregoing, a negative order is incapable of being stayed because there is nothing to stay. The temporary injunctive relief the applicant seeks is unrelated to the order issued by the lower court and is therefore extraneous. This Court lacks jurisdiction to grant such relief under the guise of stay pending appeal.
Section 75(1) of the Civil Procedure Act, read together with Order 43 of the Civil Procedure Rules, specifies the orders from which an appeal lies as of right or with leave of the Court. Order 43(1) sets out a list of orders appealable as of right, while Order 43(2) provides that appeals from all other orders may be preferred only with leave of the Court.
It is therefore clear that only orders expressly listed under Order 43(1) may be appealed from as of right. Any other order requires leave prior to filing an appeal.
In this case, the impugned ruling is one dismissing the applicant’s application seeking to review an earlier ruling delivered on 19th March 2024. That order does not fall within the category of orders appealable as of right under Order 43(1). Accordingly, the appellant was required to first obtain leave to appeal, which he did not do.
I therefore find that the memorandum of appeal dated 7th November 2025 was filed without leave and is incompetent. It is liable to dismissal under Section 79B of the Civil Procedure Act. Consequently, the present application, being founded on an incompetent appeal, equally fails and is dismissed with costs to the respondent.
DELIVERED, DATED AND SIGNED AT MOMBASA THIS 4TH DAY OF DECEMBER 2025.
Ruling delivered through the Microsoft Teams Online Platform.
WENDY KAGENDO MICHENI
JUDGE
In the presence of:
Mr. Marende Necheza for the Applicant
Mr. Mwakisha for the respondent
Brian , Court Assistant
'