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Court of AppealDismissedCivil Application No. 182 of 2019· [2020] KECA 527 (KLR)

Obadiah Muruja Mugendi v Charles Kabiti Japhet & 3 others [2020] KECA 527 (KLR)

Court of Appeal of Kenya
10 July 2020
Martha Karambu KoomeM. K. KoomeAMAsike MakhandiaAMA. K. Murgor
1,213 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled that you cannot get a stay of execution over a dismissal, and filing an appeal notice late costs you—age is no excuse.

What this practically means

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Executive summary

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This was an omnibus application under Rule 5(2)(b) of the Court of Appeal Rules in which Obadiah Muruja Mugendi, an 88-year-old litigant in person, sought a stay of execution of the High Court judgment at Chuka (Njoroge, J.) dated 29th May 2019 dismissing his constitutional petition over a land parcel at Muthambi/Kandungu, together with leave to file a notice of appeal out of time. The 1st respondent, Charles Kabiti Japhet, opposed the application, explaining that he had purchased the land in 2001, occupied and developed it, and that the applicant's claims had previously been dismissed by the Muthambi Land Dispute Tribunal and the Eastern Province Land Dispute Appeals Tribunal, and a subsequent magistrate's court suit had been withdrawn. The Court of Appeal (Koome, Makhandia and Murgor, JJ.A) dismissed the application on two grounds. First, the notice of appeal dated 1st October 2019 was filed out of time, so there was no valid notice of appeal on record upon which interim stay orders could be granted; the Court held that the applicant's advanced age and health did not exempt him from compliance with the rules of court. Secondly, the order sought to be stayed was a negative order - a dismissal - which is incapable of execution except as to costs, and no stay can issue in respect of such an order. The Court adopted the principles in Ismael Kagunji Thande v Housing Finance Kenya Ltd and followed the decisions in Cooperative Bank v BIFU Kenya and Executive Estates Ltd v Kenya Posts. The application was dismissed with no order as to costs, given that both parties were unrepresented.

Key legal issues

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01

Whether a stay of execution can be granted over a negative order

Holding

No. An order dismissing a suit is negative in effect and incapable of execution except for costs, so no stay can issue.

Reasoning

The Court adopted the reasoning of Kantai, JA in the Cooperative Bank case and Executive Estates Ltd, holding that stay of execution is an interim measure delaying performance of positive obligations in a decree. Since the judgment below merely dismissed the applicant's petition, there was nothing to stay.

p. 2
02

Whether interim stay orders can rest on an invalid notice of appeal

Holding

No. Where the notice of appeal was filed out of time, there is no valid notice of appeal on record upon which interim orders of stay can be granted.

Reasoning

The judgment was delivered on 29th May 2019 but the notice of appeal was dated 1st October 2019, well out of time. Although the applicant was an 88-year-old litigant in person, the Court held that sympathy cannot displace compliance with procedural rules, and dismissed the omnibus application.

p. 2

Legal principles established

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  • An applicant under Rule 5(2)(b) must show both that the appeal is arguable and that it will be rendered nugatory absent the stay or injunction sought
  • An order of stay of execution cannot issue in respect of a negative order, such as an order dismissing a suit or petition, because such an order is incapable of execution except as to costs
  • Personal circumstances such as advanced age do not exempt a litigant from compliance with the rules of court

Court orders

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  1. 1.The application dated 10th December 2019 is dismissed
  2. 2.No order as to costs
On appeal from
High Court of Kenya at Chuka
Chuka ELC Petition No. 03 of 2018
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution and orders intended to be sought on appeal)

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, "Obadiah Muruja Mugendi v Charles Kabiti Japhet & 3 others [2020] KECA 527 (KLR)", Case Analysis (2020). Civil Application No. 182 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2020/527/eng@2020-07-10

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