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Court of AppealDismissedNairobi Civil Application (as stated in the judgment, arising from Nairobi ELC Case No 81 of 1999 (OS))· [2023] KECA 592 (KLR)

Mukuna & 4 others v Wairia & 6 others (Civil Application E136 of 2021) [2023] KECA 592 (KLR)

Court of Appeal of Kenya
26 May 2023
KMK. M'InotiHOH. OmondiKLDr. K. I. Laibuta
1,965 words in judgment
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The bottom line

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Kenya's Court of Appeal ruled you cannot obtain a stay of execution of a court order that simply dismisses a suit, because such orders cannot be executed.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (K. M'Inoti, H. Omondi and Dr. K. I. Laibuta, JJAA) on the applicants' Notice of Motion dated May 4, 2021 seeking stay of execution of the judgment of the Environment and Land Court at Nairobi (Komingoi, J) delivered on December 17, 2020, which dismissed their Originating Summons claiming parcels Loc 16/Ndakaini/707-713 by adverse possession. The applicants faulted the trial court for, among other things, finding their occupation was not peaceful and that they had not occupied the land for twelve continuous years. The single-judge prayer for extension of time had been disposed of, leaving the stay prayer, which the full bench observed should have been brought under rule 5(2)(b) of the Court of Appeal Rules. The Court framed the sole decisive question as whether an order dismissing a suit is capable of being stayed. Relying on its own precedents - Western College of Arts and Applied Sciences v Oranga, Co-operative Bank of Kenya Limited v BIFU, and George Ole Sangui v Kedong Ranch - it held that a dismissal order is a negative order that directs no party to do or refrain from doing anything, and is therefore incapable of execution except as to costs. The Court adopted that reasoning, disallowed the prayer for stay, and dismissed the Motion with costs to the respondents.

Key legal issues

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Whether an order dismissing a suit can be stayed under rule 5(2)(b) of the Court of Appeal Rules

Holding

No. An order of dismissal of a suit is a negative order, incapable of execution, and stay of execution cannot issue in respect of it; the only executable element is an order for costs.

Reasoning

The Court traced its own consistent jurisprudence from Western College of Arts and Applied Sciences v Oranga, through Kanwal Sarjit Singh Dhiman, Co-operative Bank of Kenya Limited v BIFU, and George Ole Sangui v Kedong Ranch. All hold that where the court below merely dismissed the suit without ordering any party to do, refrain from doing, or pay anything, there is nothing to execute and therefore nothing to stay, save costs. The Court adopted that reasoning and disallowed the stay prayer.

p. 3

Legal principles established

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  • The Court of Appeal cannot grant stay of execution of a negative order; an order dismissing a suit is incapable of being stayed because it directs nothing to be done or refrained from

Court orders

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  1. 1.The applicants' prayer for stay of execution is disallowed
  2. 2.The applicants' Notice of Motion dated May 4, 2021 is dismissed with costs to the respondents
On appeal from
Environment and Land Court at Nairobi
Nairobi ELC Case No 81 of 1999 (OS)
Jurisdiction invoked
Rules 4, 41 and 47 of the Court of Appeal Rules; the substantive relief properly seeking under 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, "Mukuna & 4 others v Wairia & 6 others (Civil Application E136 of 2021) [2023] KECA 592 (KLR)", Case Analysis (2023). Nairobi Civil Application (as stated in the judgment, arising from Nairobi ELC Case No 81 of 1999 (OS)). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/592/eng@2023-05-26

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