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Court of AppealDismissedCivil Application No. 153 of 2020· [2021] KECA 871 (KLR)

Protus Oduor Malala v Wanyangu Livingstone Onjala

Court of Appeal
19 March 2021
1,291 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal dismissed a stay application because a dismissed appeal creates no order capable of execution; parties must ask for the right relief.

What this practically means

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Executive summary

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This is a Rule 5(2)(b) Court of Appeal ruling on an application by Protus Oduor Malala for stay of execution of the judgment and decree of the Environment and Land Court at Kakamega (N. A. Matheka J) delivered on 25 November 2020 in ELC Appeal Cause No. 10 of 2020. The ELC had dismissed the applicant's first appeal against a magistrate's court judgment granting the respondent a permanent injunction against trespass on land parcel N/Wanga/Namamali/1598, a subdivision of N/Wanga/Namamali/665. The applicant, who said he had built his home and extensively developed the suit property, feared eviction and argued his intended appeal - on fresh evaluation of evidence and the fate of Kshs. 100,000 - was arguable and would be rendered nugatory. The respondent filed no reply and did not attend. The Court applied the twin tests in Stanley Kangethe Kinyanjui v Tony Ketter but held, following Devani v Joseph Ngindari (as cited in George Ole Sangui v Kedong Ranch) and Western College of Arts and Applied Sciences v Oranga, that because the ELC merely dismissed the appeal with no orders as to costs, it made no positive order and there was no decree capable of execution. The effective protection sought would have been an injunction against eviction, which was never prayed. The motion was dismissed as incompetent, with no orders as to costs since the respondent did not participate.

Key legal issues

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01

Whether a decree exists capable of execution where the court below merely dismissed the appeal

Holding

Where the court below dismissed the appeal with no orders as to costs, there is no positive order and therefore no decree capable of execution, so a Rule 5(2)(b) stay application is incompetent

Reasoning

Rule 5(2)(b) empowers the Court to order a stay of execution, an injunction or a stay of proceedings, but only of orders capable of execution. A dismissal with no orders as to costs creates no positive obligation on any party. Relying on Devani v Joseph Ngindari as cited in George Ole Sangui v Kedong Ranch and Western College of Arts v Oranga, the Court held that granting the stay would impermissibly revive the dismissed appeal, which can only be undone after hearing the appeal.

p. 2
02

Whether the relief actually needed could be granted through the orders sought

Holding

The practical protection the applicant sought - against eviction - could only be achieved by an order restraining eviction, which he never sought; the Court cannot grant orders in vain

Reasoning

The applicant sought to stay execution of the ELC decree, but the operative decree was that of the magistrate's court, which takes effect only as a consequence of the dismissal of his appeal. Staying the ELC judgment would not achieve that. The appropriate relief would have been an injunction restraining eviction, but no such prayer was made, and a court of law cannot grant orders in vain.

p. 2

Legal principles established

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  • There can be no stay of execution of a dismissal order, because a dismissal creates no positive order or decree capable of execution; a stay application against such an order is incompetent

Court orders

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  1. 1.The motion is dismissed
  2. 2.No orders as to costs
On appeal from
Environment and Land Court at Kakamega
ELC Appeal Cause No. 10 of 2020
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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Cite this brief

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Cite this brief

Caselaw, "Protus Oduor Malala v Wanyangu Livingstone Onjala", Case Analysis (2021). Civil Application No. 153 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/871/eng@2021-03-19

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