Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment· [2015] KEELC 707 (KLR)

Simon Musili Musyoka & 2 others v Commissioner of Lands & 8 others [2015] KEELC 707 (KLR)

High Court of Kenya
23 January 2015
MGMARY M. GITUMBI
1,213 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~5 min to read original · ~4 min brief

The bottom line

#

The High Court refused to stop evictions from the Mwengenye settlement scheme, ruling you cannot stay a dismissal or get an injunction without a pending case.

What this practically means

#

Executive summary

#
The court ruled on two Notices of Motion by the Petitioners/Applicants arising from the ruling of Mary M. Gitumbi J of 19th April 2013, which disposed of their Petition concerning the Mwengenye settlement scheme in Embakasi, Nairobi. The First Application sought a stay of that ruling pending an intended appeal, supported by the affidavit of Simon Musili Musyoka. The 8th and 9th Respondents filed a preliminary objection and replying affidavit, arguing that the dismissal was a negative order incapable of being stayed, that no appeal or notice of appeal had been filed, and that title to portions of the land was registered in their names. The Second Application sought a temporary injunction restraining eviction, supported by an affidavit sworn by the Petitioners' advocate, Dr. John M. Khaminwa, alleging contempt of extended stay orders. The 3rd and 9th Respondents opposed, contending there was no prima facie case, no pending appeal, and that the supporting affidavit was defective. The court applied Royal Media Services v Telkom Kenya Ltd, holding that an order dismissing or striking out a petition is negative in form and incapable of being stayed; it also found no evidence of any filed appeal. On the injunction, the court held that a temporary injunction is an interlocutory remedy in a suit awaiting hearing, and the Petition having been struck out, there was no suit in which it could issue. Both applications were dismissed with costs to the Respondents.

Key legal issues

#
01

Whether stay of a dismissal/strike-out ruling can issue

Holding

No; the order is negative in form and there was no evidence of a filed appeal or notice of appeal

Reasoning

The court adopted the reasoning in Royal Media Services v Telkom Kenya Ltd that an order dismissing a suit is negative in form and there is nothing to stay. It further found that the Applicants produced no evidence of having filed an appeal or notice of appeal against the 19th April 2013 ruling, so no pending appeal existed; even if one did, the negative order could not be stayed.

p. 3
02

Whether a temporary injunction could issue to restrain eviction

Holding

No; the Petition had been struck out and there was no suit awaiting hearing in which an interlocutory injunction could be granted

Reasoning

The court agreed with the 8th and 9th Respondents that a temporary injunction is a remedy granted at the interlocutory stage of a suit prior to hearing. Since the Petition itself had been struck out, there was no substantive suit in which the injunction could pend. The application was therefore incompetent and was dismissed with costs.

p. 3

Legal principles established

#
  • An order dismissing or striking out a suit is a negative order which is not capable of execution and cannot be stayed
  • A temporary injunction is an interlocutory remedy available only where there is a suit pending hearing

Court orders

#
  1. 1.Dismissal of the First Application (Notice of Motion dated 22nd April 2013) with costs to the Respondents
  2. 2.Dismissal of the Second Application (Notice of Motion dated 28th May 2013) with costs to the Respondents

Authorities

#

Cases cited (1)

  • Royal Media Services versus Telkom Kenya Limited & 13 Others
    (2005) eKLR
Jurisdiction invoked
Inherent jurisdiction of the High Court over its own interlocutory applications in a pending petition (no specific provision cited)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Simon Musili Musyoka & 2 others v Commissioner of Lands & 8 others [2015] KEELC 707 (KLR)", Case Analysis (2015). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2015/707/eng@2015-01-23

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