Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealDismissedCivil Application No. 60 of 2020· [2020] KECA 250 (KLR)

Registered Trustees of the Agricultural Society of Kenya (ASK) v Lake Basin Development Authority [2020] KECA 250 (KLR)

Court of Appeal
23 October 2020
RNR. N. NambuyeDMD. K. MusingaFSF. Sichale
469 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~2 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal refused to stop a High Court order halting ASK's activities on disputed Kisumu land, because orders requiring someone to stop doing something cannot be stayed.

What this practically means

#

Executive summary

#
This was an application under Rule 5(2)(b) of the Court of Appeal Rules, also invoking Sections 1A and 1B of the Civil Procedure Act, by the Registered Trustees of the Agricultural Society of Kenya seeking a stay of execution of a ruling of the High Court of Kenya at Kisumu (Ombwayo, J) dated 29th April 2020 in ELC No. 49 of 2019, pending the hearing and determination of an intended appeal against a ruling in which the trial court granted what the applicant described as a mandatory injunction at an interlocutory stage. The dispute concerned land to which both parties claimed to be allottees, with the respondent asserting a superior title. The Court of Appeal (Nambuye, Musinga and Sichale, JJ.A) applied the well-known principles in Stanley Kang'ethe Kinyanjui vs. Tony Ketter & Others, which require an applicant to demonstrate both that the intended appeal is arguable and that it would be rendered nugatory if stay is refused. The court accepted that the applicant had established an arguable appeal, but held that the second limb failed because the order sought to be stayed was a negative order directing the applicant to stop any activities on the suit property, citing Kenya Commercial Bank Limited vs. Tamarind Meadows Limited & 7 others on the stay of negative orders. The Notice of Motion dated 25th May 2020 was accordingly disallowed, with costs to the applicant. The decision does not disturb the High Court ruling, which remains in effect pending the intended appeal.

Key legal issues

#
01

Whether stay of execution should issue pending the intended appeal under Rule 5(2)(b)

Holding

The application was disallowed because, although the appeal was arguable, the applicant failed to establish nugatory aspect since the order sought to be stayed was a negative order.

Reasoning

The court applied the settled Rule 5(2)(b) principles requiring an applicant to demonstrate both an arguable appeal and that the appeal would be rendered nugatory if stay is denied. Arguability alone suffices only if nugatory-ness is shown. Here the impugned order was negative in nature, merely restraining the applicant from activities on the suit property, so no execution would occur that a stay could arrest, and the second limb failed.

p. 1

Legal principles established

#
  • A negative order, such as one directing a party to stop activities on suit property, cannot be stayed; an applicant for stay must show the appeal will be rendered nugatory if the order is executed
  • An applicant under Rule 5(2)(b) must establish both an arguable appeal and that the appeal will be rendered nugatory absent stay, applying the principles in Stanley Kang'ethe Kinyanjui vs. Tony Ketter

Court orders

#
  1. 1.The Notice of Motion dated 25th May, 2020 is disallowed
  2. 2.The applicant shall bear the costs of this application

Authorities

#

Legislation

  • Civil Procedure ActSections 1A and 1B
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (2)

  • Stanley Kang’ethe Kinyanjui vs. Tony Ketter & Others
    [2013] eKLR
  • Kenya Commercial Bank Limited vs. Tamarind Meadows Limited & 7 others
    [2016] eKLR
On appeal from
High Court of Kenya at Kisumu
ELC No. 49 of 2019
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Registered Trustees of the Agricultural Society of Kenya (ASK) v Lake Basin Development Authority [2020] KECA 250 (KLR)", Case Analysis (2020). Civil Application No. 60 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/250/eng@2020-10-23

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