Caleb Ouma & 5 others v Seventh Day Adventist Church (East Africa Ltd) [2020] KECA 197 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop an eviction because the applicants never filed a notice of appeal against that order and dismissal orders cannot be stayed.
What this practically means
#Executive summary
#Key legal issues
#Jurisdiction to stay execution of an order not the subject of a notice of appeal
The Court lacks jurisdiction under Rule 5(2)(b) to stay execution of an order against which no notice of appeal has been filed; the applicants' failure to file a notice of appeal against the 18th September 2019 eviction order deprived the Court of jurisdiction over it.
The central document from which the Court's Rule 5(2)(b) jurisdiction flows is a notice of appeal, and that notice must relate to the order or decree impugned on the intended appeal and whose execution is sought to be stayed. The applicants' motion and notice of appeal targeted only the 22nd November 2019 ruling, not the 18th September 2019 eviction order, though their prayer was calculated to reach the latter. No appeal lay against either the judgment or the eviction order, so the Court could not entertain a stay of that order.
Whether a negative order is capable of execution and hence of being stayed
A negative order, such as the dismissal of an application for review, is not capable of execution and therefore cannot be stayed; the Court has no jurisdiction to stay where there is nothing to stay.
The dismissal of the applicants' application to review and set aside the 18th September 2019 order was a negative order. The Court, following its own precedents including Western College of Arts & Applied Sciences v Oranga, held that it cannot stay a negative order and has no jurisdiction to grant a stay or injunction where the court below has issued no executable order. Since the respondents had nothing to execute under the dismissed review application, the stay sought was incompetent.
Legal principles established
#- The Court cannot stay a negative order and will not issue an order of stay where there is nothing to stay.
- The Court has no jurisdiction to issue an injunction or stay where the court appealed from has not issued an executable order.
- A notice of appeal under Rule 5(2)(b) must relate to the order or decree impugned on the intended appeal, and the Court has no jurisdiction to stay execution of an order against which no notice of appeal has been filed.
Court orders
#- 1.The motion dated 28th November 2019 is dismissed
- 2.Costs of the application are awarded to the respondent
- On appeal from
- Environment and Land Court of Kenya at Kisumu
- ELC No. 806 of 2015
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Caleb Ouma & 5 others v Seventh Day Adventist Church (East Africa Ltd) [2020] KECA 197 (KLR)", Case Analysis (2020). Kisumu Civil Application No. 151 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/197/eng@2020-11-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.