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Court of AppealDismissedCivil Application No. 36 of 2019· [2019] KECA 120 (KLR)

Mohamed Salim Hussein & 61 others v Egerton University [2019] KECA 120 (KLR)

Court of Appeal
28 November 2019
DMD. K. MusingaSKS. Gatembu KairuAMA. K. Murgor
1,661 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled you cannot get a stay of execution of a court order that merely dismisses an application — a 'negative order' gives nothing to stay.

What this practically means

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Executive summary

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The applicants, who had encroached on Egerton University's land, sought stay of execution of eviction orders pending an intended appeal against Olola, J.'s ruling of 24 January 2019 dismissing their application to set aside Angote, J.'s judgment of 5 June 2015, which had ordered their eviction and granted a permanent injunction against them. The motion, brought under sections 3A and 3B of the Appellate Jurisdiction Act and rules 5(2)(b) and 47 of the Court of Appeal Rules, was resisted on the basis that the ruling sought to be appealed was a negative order incapable of execution, and that no appeal lay against the underlying eviction judgment. The Court of Appeal, in a unanimous ruling delivered at Malindi on 28 November 2019, restated the twin principles governing rule 5(2)(b) applications - an arguable appeal and the nugatory-appeal test - while emphasising that the court exercises original and discretionary jurisdiction, not an appellate review of the judge's discretion. The court declined to decide arguability, observing that the applicants were unclear whether their intended appeal targeted Angote, J.'s judgment or Olola, J.'s ruling. Following its precedents in Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah and Western College of Arts and Applied Sciences v Oranga, the court held that a negative order - one that orders no party to do anything, refrain from anything, or pay anything - is incapable of execution save in respect of costs, and that consequently there was nothing to stay. The motion was dismissed with costs to the respondent. This ruling binds subordinate courts and guides rule 5(2)(b) practice: no stay lies in respect of negative orders.

Key legal issues

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01

Whether stay of execution can issue in respect of a negative order

Holding

No. A negative order, such as a dismissal of an application with costs, directs no party to do anything or refrain from doing anything or pay any sum, and is therefore incapable of execution save in respect of costs. There is nothing to stay.

Reasoning

The court applied its own precedents, Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah and Western College of Arts and Applied Sciences v Oranga, holding that where the superior court has merely dismissed a suit or application with costs, execution lies only in respect of costs. Since Olola, J. had dismissed the application to set aside the judgment with costs, there was nothing for the Court of Appeal to stay under rule 5(2)(b).

p. 3
02

The threshold for stay under rule 5(2)(b) and the court's jurisdiction

Holding

The court exercises original and discretionary jurisdiction, not an appeal from the judge's discretion; the applicant must show an arguable appeal and that the appeal would be rendered nugatory absent stay. A single arguable ground suffices.

Reasoning

Relying on Stanley Kang'ethe Kinyanjui v Tony Keter & 5 Others and Ruben & Others v Nderitu & Another, the court restated the twin principles. However, it found it unnecessary to determine arguability because the orders sought could not be granted in any event, and observed that the applicants were inconsistent about whether the intended appeal targeted Angote, J.'s judgment or Olola, J.'s ruling.

p. 3

Legal principles established

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  • An order of stay of execution cannot be granted in respect of a negative order, which orders no party to do or refrain from doing anything and is incapable of execution save in respect of costs.
  • In dealing with rule 5(2)(b) applications, the Court exercises original and discretionary jurisdiction which does not constitute an appeal from the judge's discretion.
  • The twin principles governing rule 5(2)(b) applications are that the appeal must be arguable and that, if successful, it would be rendered nugatory absent the orders sought.

Court orders

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  1. 1.The Notice of Motion dated 10th May 2019 is dismissed with costs to the respondent

Authorities

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Legislation

  • Appellate Jurisdiction ActSections 3A, 3B
  • Court of Appeal RulesRules 5(2)(b), 47(1) and (2)
  • Land Laws Amendment Act, 2016Sections 152(C), (D), (E) and (F)

Cases cited (4)

  • Stanley Kang'ethe Kinyanjui vs Tony Keter & 5 Others
    Civil Application No. NAI. 31/2012
  • Ruben & Others vs Nderitu & Another
    (1989) KLR 459
  • Kanwal Sarjit Singh Dhiman vs Keshavji Jivraj Shah
    [2008] eKLR
  • Western College of Arts and Applied Sciences vs Oranga & Others
    [1976] KLR 63
On appeal from
Environment and Land Court at Malindi
Malindi ELC Suit No. 97 of 2014 (application to set aside decided in Malindi ELC Case; earlier proceedings Malindi ELC Case No. 67 of 2013)
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act and rules 5(2)(b) and 47(1) and (2) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Mohamed Salim Hussein & 61 others v Egerton University [2019] KECA 120 (KLR)", Case Analysis (2019). Civil Application No. 36 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/120/eng@2019-11-28

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.