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ELCDismissed(not stated in judgment)· [2016] KEELC 992 (KLR)

Japheth Ogendo Owuor v Oriental Commercial Bank [2016] KEELC 992 (KLR)

High Court of Kenya
26 February 2016
AOANTONY OMBWAYO
1,529 words in judgment
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The bottom line

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Kenya's High Court confirmed you cannot 'stay' a dismissal, and injunctions pending Court of Appeal appeals must be sought from the Court of Appeal itself.

What this practically means

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Executive summary

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The plaintiff, Dr. Japehth Ogendo Owuor, moved the High Court at Eldoret by Notice of Motion under Order 22 Rule 2, Order 42 Rules 6(4) and 5 and Section 63(e) of the Civil Procedure Act seeking a stay of sale of his property, L.R. Eldoret Municipality Block 10/107, pending the hearing and determination of his appeal to the Court of Appeal against a ruling of Munyao J delivered on 23.10.2014 dismissing his application for an interlocutory injunction restraining the defendant bank from exercising its statutory power of sale. The applicant argued the sale would render his appeal nugatory, that his livelihood (an agro-processing business on the land) would be destroyed, that no valid charge existed over the property, and that no prejudice would befall the respondent as he had deposited Kshs.250,000 as security. The respondent opposed, contending that the ruling sought to be stayed was a negative order incapable of execution, that the court's jurisdiction to grant stay pending appeal was not triggered, and that the application was an abuse of process. Ombwayo J considered Order 42 Rule 6 and found the applicant had not satisfied its conditions because the decree appealed from was a dismissal, not a positive order capable of execution. The court further held that Order 42 Rule 6 was inapplicable as the High Court was not exercising appellate jurisdiction over a subordinate court or tribunal, and that the injunction application should have been made in the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules. The application was dismissed with costs on 26 February 2016.

Key legal issues

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01

Whether the court can grant stay of execution of a negative order

Holding

It cannot; a dismissal imposes no obligations capable of enforcement by execution

Reasoning

The court examined Order 42 Rule 6 and found that the ruling of 23.10.2014 dismissed the applicant's injunction application. Since no positive order was issued, there is nothing capable of being stayed. The respondent had argued the order was negative and that the application was an abuse of process. The court agreed that the conditions for stay were not met.

02

Whether the High Court has jurisdiction to grant the injunction/stay sought

Holding

No; the jurisdiction under Order 42 Rule 6 applies only where the High Court is hearing an appeal from a subordinate court or tribunal

Reasoning

The court noted the appeal lay to the Court of Appeal from a decision of the High Court (Munyao J). Order 42 Rule 6 confers power on the High Court in exercise of appellate jurisdiction over subordinate courts or tribunals only. The proper forum for an injunction pending appeal to the Court of Appeal is that court itself under Rule 5(2)(b) of the Court of Appeal Rules.

p. 3

Legal principles established

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  • A dismissal is a negative order not capable of execution and thus not amenable to stay of execution
  • The High Court lacks jurisdiction under Order 42 Rule 6 to grant an injunction pending appeal unless exercising appellate jurisdiction over a subordinate court or tribunal; such applications must be made to the Court of Appeal under Rule 5(2)(b)

Court orders

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  1. 1.The application is dismissed with costs

Authorities

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Legislation

  • Civil Procedure ActSection 63(e)
  • Civil Procedure RulesOrder 22 Rule 2
  • Civil Procedure RulesOrder 42 Rules 6(1)-(6) and 5
  • Court of Appeal RulesRule 5(2)(b)

Cases cited (1)

  • Giella Vs Cassman Brown & Company Ltd
    EACA 51 (1973)
Jurisdiction invoked
Order 22 Rule 2 and Order 42 Rules 6(4) and 5 and Section 63(e) Civil Procedure Act

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, "Japheth Ogendo Owuor v Oriental Commercial Bank [2016] KEELC 992 (KLR)", Case Analysis (2016). (not stated in judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2016/992/eng@2016-02-26

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