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Court of AppealDismissedCivil Application No. 41 of 2019· [2020] KECA 192 (KLR)

Ektela Ekailodio & 11 Others v Christopher Kurutyon Lonyala & 26 Others

Court of Appeal
20 November 2020
HOHannah OkwenguJMJ. MohammedSKS. ole Kantai
927 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a ruling of the Court of Appeal on a motion under rules 5(2)(b) and 15 of the Court of Appeal Rules seeking stay of execution pending appeal. The applicants sought to stay orders of 26th April 2016 made by Obaga, J in ELC Petition No. 2 of 2014 at Kitale, and to maintain status quo orders pending appeal. The intended appeal was against a decision of Mwangi Njoroge, J delivered on 28th March 2019 declining the applicants' application for stay of execution. The Court noted two defects: first, the record did not contain the ruling intended to be appealed; second, and decisively, the decision below was a negative order - the ELC had refused to stay execution, thereby granting no positive order capable of execution. Applying its own precedents in Devani v Ngindari and Exclusive Estates Ltd v Kenya Posts and Telecommunications Corporation, the Court held that a stay under rule 5(2)(b) lies only in respect of a decree or order capable of execution under section 38 of the Civil Procedure Act, and that an order dismissing an application is a negative order that cannot be executed. Since there was nothing capable of execution, the Court could not grant a favourable order under rule 5(2)(b). The motion was dismissed. The judgment binds subordinate courts and reaffirms the negative-order doctrine governing rule 5(2)(b) applications. No costs order is recorded. No separate opinions were written; the bench was unanimous.

Key legal issues

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01

Whether a negative order declining stay is capable of execution for purposes of rule 5(2)(b)

Holding

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

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 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

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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, "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.