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Court of AppealDismissedCivil Application No. E071 of 2020· [2021] KECA 443 (KLR)

Mbarak Said Ali & another v Sultan Palace Development Limited [2021] KECA 443 (KLR)

Court of Appeal
9 July 2021
William OukoOukoSISichaileJMJ. Mohammed
1,399 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed you cannot get a stay of execution of an order that simply dismissed your case, because there is nothing to execute.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal (Sichaile, JA, delivering the ruling of the Court) on the applicants' Notice of Motion dated 16th November 2020 seeking, under Rule 5(2)(b) of the Court of Appeal Rules, a stay of execution of the orders of the Environment and Land Court at Malindi (Olola, J) dated 5th November 2020 in ELC Case No. 29 of 2019 (OS), which dismissed the applicants' originating summons. The applicants argued they had an arguable appeal on the validity of a consent letter, the effect of such consent on the running of time for adverse possession, and the description of the suit property; on the nugatory limb they asserted over thirty years' occupation and the risk of eviction and alteration of the topography of the land. The respondent contended the applicants were trespassers who had consented to vacate after payment. Applying the twin principles restated in Stanley Kang'ethe Kinyanjui v Tony Keter, and relying on Western College of Arts and Applied Sciences v EP Oranga and Raymond M. Omboga v Austine Pyan Maranga, the Court held that the applicants sought to stay a negative order - the dismissal of their originating summons - which is incapable of execution save for costs. With no positive order capable of execution, the second twin principle could not be satisfied. The motion was dismissed with costs on 9th July 2021, the ruling being signed under Rule 32(3) given Ouko JA's elevation to the Supreme Court and J. Mohammed JA's concurrence.

Key legal issues

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01

Whether a stay of execution can issue in respect of an order dismissing a suit (a negative order)

Holding

No. A dismissal is a negative order incapable of execution save for costs, and the dismissal simply leaves the applicant in the position he occupied before coming to court.

Reasoning

Relying on Western College of Arts and Applied Sciences v EP Oranga and Raymond M. Omboga v Austine Pyan Maranga, the Court held that because the ELC dismissed the originating summons and ordered no party to do or refrain from doing anything, there is nothing to execute and hence nothing to stay. The applicants' failure on the second twin principle of Rule 5(2)(b) was dispositive, even assuming the appeal was arguable.

p. 2

Legal principles established

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  • A negative order - the dismissal of a suit or application - is incapable of execution and therefore incapable of stay; where no positive order was made in favour of the respondent, there can be no stay of execution under Rule 5(2)(b).
  • An applicant under Rule 5(2)(b) must satisfy both twin principles - arguability of the appeal and the nugatory factor - and even a satisfied arguability limb is defeated where the order sought to be stayed is not executable.

Court orders

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  1. 1.The motion dated 16th November, 2020 is dismissed with costs

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Court of Appeal RulesRule 75
  • Court of Appeal RulesRule 32(3)

Cases cited (11)

  • Stanley Kang'ethe Kinyanjui vs. Tony Keter & 5 Others
    [2013] eKLR
  • Ruben & 9 others v Nderitu & Another
    (1989) KLR 459
  • Halai & Another v Thornton & Turpin (1963) Ltd.
    (1990) KLR 365
  • David Morton Silverstein v Atsango Chesoni
    Civil Application No. Nai 189 of 2001
  • Damji Pragji Mandavia v Sara Lee Household & Body Care (K) Ltd
    Civil Application No. Nai 345 of 2004
  • Joseph Gitahi Gachau & Another v. Pioneer Holdings (A) Ltd. & 2 others
    Civil Application No. 124 of 2008
  • Reliance Bank Ltd v Norlake Investments Ltd
    [2002] 1 EA 227
  • International Laboratory for Research on Animal Diseases v. Kinyua
    [1990] KLR 403
  • Western College of Arts and Applied Sciences v EP Oranga & 3 others
    [1976] eKLR
  • Wilson v Church
  • Raymond M. Omboga v Austine Pyan Maranga
    Kisii HCCA No 15 of 2010
On appeal from
Environment and Land Court at Malindi
ELC Case No. 29 of 2019 (OS)
Jurisdiction invoked
Rule 5(2)(b) 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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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mbarak Said Ali & another v Sultan Palace Development Limited [2021] KECA 443 (KLR)", Case Analysis (2021). Civil Application No. E071 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/443/eng@2021-07-09

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