Charles Munyendo Olingo v Salim Chetechi Makokha & Gregory Machanja Wamere (Civil Application 77 of 2018) [2019] KECA 542 (KLR)
The bottom line
#The Court of Appeal ruled you cannot 'stay' an order dismissing your case — dismissals take effect immediately, so winning appeals start with a properly filed draft memorandum.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether a negative court order, such as an order dismissing a suit, is capable of being stayed
- 2.Whether the applicant satisfied the principles for grant of stay of execution pending appeal under Rule 5(2)(b), namely an arguable appeal and nugatory effect
Key legal issues
#Whether a negative order dismissing a suit can be stayed
No. An order of dismissal is not a positive order requiring any party to do or refrain from doing anything; it is incapable of execution or enforcement and cannot be stayed under Rule 5(2)(b).
The applicant's claim before the ELC was dismissed; the court made no positive order. Following George Ole Sangui v Kedong Ranch Ltd, Western College v Oranga and Republic v Kenya Wildlife Service, only a positive, enforceable order is capable of stay. The only executable element in such a judgment would be costs, and dismissal of a suit determines the claim without conferring relief. The application therefore failed on this threshold point.
Whether the intended appeal was arguable
The applicant failed to demonstrate arguability, partly because no draft memorandum of appeal was annexed.
The applicant did not annex a draft memorandum of appeal, so the court could not assess whether the intended grounds were arguable. Although the contention that adverse possession was not pleaded might be a good ground, the record did not align with the applicant's submissions. An arguable appeal need not succeed but must merit the court's consideration.
Whether the intended appeal would be rendered nugatory absent stay
No. The applicant did not dispute that the 2nd respondent is in possession of the suit land and showed no hardship.
The nugatory test requires consideration of the conflicting claims of both sides. The applicant did not dispute the 2nd respondent's possession of the suit land, did not claim imminent eviction from where he resides, and did not demonstrate the hardship he would suffer. No prejudice would therefore be occasioned to the applicant absent a stay.
Legal principles established
#- A negative order, such as an order dismissing a suit, is not capable of being stayed or executed and stay of such an order cannot be granted under Rule 5(2)(b).
- An applicant under Rule 5(2)(b) must show first that the appeal is arguable and second that it would be rendered nugatory absent a stay.
Court orders
#- 1.The application dated 9th August 2018 is dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
Wrote the judgment
Wrote the judgment
- On appeal from
- Environment and Land Court at Kakamega
- E.L.C. Cause No. 630 of 2014
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the judgment and decree of the ELC at Kakamega pending the intended appeal
The order sought to be stayed was negative in nature and incapable of being stayed; in any event arguability and nugatory effect were not demonstrated
Costs
The application is dismissed with costs 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.
we are satisfied that the order issued by the trial court was negative in nature which by parity of a long line of decisions of this Court as demonstrated above, is incapable of being stayed.
The dismissal order cannot be enforced and is not capable of execution. It is not a positive order requiring any party to do or to refrain from doing anything.
An arguable appeal is not one that must necessarily succeed, it is simply one that is deserving of the court’s consideration.
Consequently, the application dated 9 th August, 2018 lacks merit and is accordingly dismissed with costs to the respondents.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Charles Munyendo Olingo v Salim Chetechi Makokha & Gregory Machanja Wamere (Civil Application 77 of 2018) [2019] KECA 542 (KLR)", Case Analysis (2019). Civil Application No. 77 of 2018 (UR. 51/2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2019/542/eng@2019-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.