Michael E.G. Muhindi v John Ngure Murekio [2015] KEELC 46 (KLR)
The bottom line
#Kenya's High Court refused a stay of execution because the order being appealed required no party to do anything, so there was nothing to stay.
What this practically means
#Executive summary
#Key legal issues
#Whether there exists an order capable of being stayed
The order of 15th January 2015 merely recorded the magistrate's functus officio status and described the boundary fixed by the Land Registrar; it did not order any party to do or refrain from doing anything, so there is no order capable of execution or stay.
The court examined the order and found it only commented that the magistrate was functus officio once the Land Registrar fixed the boundary, described the boundary features, and gave a right of appeal. It repeated the contents of the Land Registrar's report dated 25th September 2014 and issued no directive capable of execution. Stay of execution presupposes an executable order.
Whether the applicant demonstrated substantial loss under Order 42 Rule 6
Substantial loss was not established because the order sought to be appealed from is not capable of execution; the pleaded apprehension of land appropriation does not arise.
Order 42 Rule 6 requires substantial loss, absence of unreasonable delay, and security. Although the applicant deponed that a portion of his land would be appropriated if the order was executed, the court had already found the order incapable of execution since it ordered no performance of anything. The issue of substantial loss therefore did not arise for determination.
Legal principles established
#- Where an order does not direct a party to do or refrain from doing anything, there is no order capable of being stayed
- Substantial loss is the cornerstone of jurisdiction to grant a stay of execution pending appeal under Order 42 Rule 6
- Arguability of the appeal is not among the considerations under Order 42 Rule 6; the main consideration is substantial loss
Court orders
#- 1.The application dated 25th May 2015 and filed herein on 28th May 2015 is dismissed with costs
- On appeal from
- Senior Resident Magistrate's Court at Baricho
- L.D.T No. 11 of 2008
- Jurisdiction invoked
- Order 42 Rule 6 and Order 51 Rule 1 of the Civil Procedure Rules 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Michael E.G. Muhindi v John Ngure Murekio [2015] KEELC 46 (KLR)", Case Analysis (2015). Application dated 25th May 2015 (appeal from Baricho P.M.C.L.D.T No. 11 of 2008). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/46/eng@2015-11-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.