1.Before us is the applicants’ Notice of Motion dated May 4, 2021 and made pursuant to rules 4, 41 and 47 of the Court of Appeal Rules seeking, inter alia, stay of execution of the judgment of the Environment and Land Court at Nairobi (L Komingoi, J) delivered on December 17, 2020 in Nairobi ELC Case No 81 of 1999 (OS) pending appeal. They also prayed that the costs of the application be in the cause. It is apt to observe that the above provisions of the Court of Appeal Rules relate to extension of time. The applicants rather unprocedurally presented an omnibus application seeking both extension of time and stay of execution. The prayer for extension of time was disposed off by a single judge, leaving the prayer for stay of execution which we would have expected to be sought under rule 5(2) (b).
2.It is noteworthy that the scanty record as put to us is comprised only of the Motion, the affidavit in support, two replying affidavits, the impugned judgment, the draft memorandum of appeal, the rival submissions of learned counsel for the applicants and for the respondents, the only documents we can go by. In the circumstances, we are only able to discern the background of the Motion before us from the impugned judgment and the rival depositions in the respective affidavits.
3.Gathering from the impugned judgment, the applicants took out an Originating Summons (the Summons) dated January 15, 1999 and amended on June 16, 2008 claiming to have acquired Parcel Numbers Loc 16/Ndakaini/ 707 – 713 (formerly Title No Loc 16/Ndakaini/ 402, the suit property) by way of adverse possession.
4.Opposing the Summons, the 6th respondent, Peter Karanja Ben Chege, testified that he bought the suit property from the 1st respondent, Mathu Wairia (now deceased); that following delay in securing their title documents, the 6th respondent together with other buyers filed Thika CMCC No 1192 of 1997 against the deceased 1st respondent; that the court gave judgment in their favour and, subsequently, they processed and obtained titles to the subdivisions of Loc 16/Ndakaini/402.
5.In her testimony, Jane Kaburu Mathu, the deceased 6th respondent’s widow, averred that Loc 16/Ndakaini/402 was subdivided into six portions being parcel Nos. Loc 16/Ndakaini/707-713 (the suit properties); that they were unable to occupy the suit properties whose survey and subdivision was violently resisted by the applicants; that her deceased husband filed HCCC No 2435 of 1994 seeking to evict the applicants from the properties, which they were still in occupation; and that her late husband had by then sold the suit properties to the 2nd – 7th respondents.
6.In her judgment delivered on December 17, 2020 in determination of the Summons, Komingoi, J dismissed the applicants’ claim in adverse possession with costs to the respondents. According to the learned Judge, the applicants’ occupation of the suit properties was not peaceful. Recounting the applicants’ testimonies, the learned Judge stated:
7.Dissatisfied by the judgment of the trial court, the applicants moved to this Court on appeal faulting the learned Judge for: misdirecting herself that the applicants were claiming a customary trust from the 1st respondent; finding that the applicants did not occupy the suit properties peacefully; finding that the applicants occupied the suit properties with the permission of the 1st respondent; finding that the applicants did not occupy the suit properties for a continuous period of twelve (12) years; and for dismissing the applicants’ claim for adverse possession.
10.The respondents oppose the Motion as is evident from the replying affidavits of Jane Kabura Mathu (the widow of the deceased 1st respondent) sworn on May 12, 2021 and of the 6th respondent sworn on March 27, 2023. In summary, the two deponents aver that the applicants have not shown any willingness to deposit reasonable security and, therefore, do not satisfy the requirement for stay of execution; that the application is merely intended to deny the respondents the fruits of their judgment; and that the applicants have, after dismissal of their suit, continued to reap benefits from the respondents’ premises without paying a single cent, and that they have filed the application for stay of execution to prolong their stay in the suit properties.
11.To bolster her opposition, learned counsel for the 1st respondent, M/s Mwaniki Gachoka & Company, filed written submissions and case digest dated May 12, 2021 citing, inter alia, the case of Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah  eKLR where, in relation to negative orders, the Court had this to say:
12.In addition, Mr Kwengu, learned counsel for the 2nd to 7th respondents, relied on the replying affidavit sworn by the 6th Respondent on March 27, 2023. All in all, learned counsel for the respondents urged us to dismiss the applicants’ Motion with costs.
13.With regard to the applicants’ prayer for stay of execution of the impugned judgment, we have carefully considered the record and the rival submissions of the parties. The issues for our consideration upon which the application turns are: whether the principles that govern the exercise of this Court’s discretionary power in granting the reliefs stipulated in rule 5(2) (b) of the Rules of this Court on which the application is predicated have been met; and whether the Court can order stay of what are essentially negative orders. In summary, the twin principles require an applicant to show that he has an arguable appeal and, further, that the appeal, if successful, shall be rendered nugatory unless stay of execution is granted.
14.It is noteworthy that what is sought to be stayed is an order dismissing the applicants’ Summons. To our mind, an order of this nature is incapable of being stayed. The order did not direct anything to be done or restrain anything from being done to the applicant’s prejudice.
15.In our considered view, the only question that falls to be determined with regard to the applicants’ Motion is whether an order dismissing a suit can be stayed under rule 5(2) (b). If the answer is in the negative, that will dispose of the application.
16.The issue whether dismissal of a suit gives rise to an order that is capable of being stayed by an order under rule 5(2)(b) was considered by this Court in Western College of Arts and Applied Sciences v Oranga & Others  KLR 63 where a dispute arose between the parties over and concerning money held in a bank account contributed by members of the public for construction of a college of technology called WECO. The appellant filed suit in the High Court seeking a declaration that the money belonged to WECO, and that WECO was entitled to operate the bank account. The High Court dismissed the suit with costs, whereupon WECO gave notice of appeal and applied for temporary injunction to restrain the respondent from operating the bank account, and for stay of execution until the appeal was determined. At the time, this Court did not have jurisdiction to grant an injunction under the equivalent of rule 5(2) (b), but had jurisdiction to grant stay of execution. The Court, therefore, held that it had no jurisdiction to grant an order for injunction. But with regard to the prayer for stay of execution in respect of which it then, as now, had jurisdiction, the Court held that there was nothing in the order of dismissal of the suit (other than the order for costs) that could be enforced and, accordingly, dismissed the application for stay. In a unanimous decision, the Court stated:
19.We adopt the same reasoning as in the afore-cited decisions and hold that, the learned judge having dismissed the applicant’s Summons, there is nothing that can be executed out of such an order. It follows, therefore, that this Court cannot grant stay of a negative orders and hereby disallow the applicants’ prayer for stay of execution. In conclusion, the applicants’ Motion lacks merit and is hereby dismissed with costs to the respondents. It is so ordered.