Ektela Ekailodio & 11 Others v Christopher Kurutyon Lonyala & 26 Others
The bottom line
#Kenya's Court of Appeal ruled you cannot get a stay of execution on an appeal if the lower court's decision is a refusal with nothing to enforce.
What this practically means
#Executive summary
#Key legal issues
#Whether a negative order declining stay is capable of execution for purposes of rule 5(2)(b)
No; the Court of Appeal cannot grant a stay under rule 5(2)(b) where the order below is a negative order with nothing to execute
The record did not even contain the ruling intended to be appealed. What was clear was that the applicants had sought stay from the ELC and it was refused, producing a negative order. Following Devani and Exclusive Estates, the Court reiterated that stay under rule 5(2)(b) attaches only to a decree or order capable of execution under section 38 of the Civil Procedure Act. Dismissing an application grants no positive order capable of execution, so no stay can issue and the Motion lacked merit.
Legal principles established
#- Rule 5(2)(b) stay may only issue in respect of a decree or order capable of execution; a negative order cannot be stayed
Court orders
#- 1.The Motion is dismissed
- On appeal from
- Environment and Land Court of Kenya at Kitale
- ELC Petition No. 2 of 2014
- Jurisdiction invoked
- Rule 5(2)(b) and rule 15 of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ektela Ekailodio & 11 Others v Christopher Kurutyon Lonyala & 26 Others", Case Analysis (2020). Civil Application No. 41 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/192/eng@2020-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.