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ELCDismissedNot stated on the face of the ruling (arising from Mutomo SRMCC No. 29 of 2014; related to Machakos High Court Civil Appeal No. 72 of 2015)· [2017] KEELC 3809 (KLR)

Kiviu Vata & another v Kasiki Makaya [2017] KEELC 3809 (KLR)

High Court of Kenya
31 August 2017
LGL. Gacheru
1,147 words in judgment
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The bottom line

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Kenya's High Court ruled you cannot stay a court order that merely dismissed your application—if the ruling granted nothing, there is nothing to stay.

What this practically means

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Executive summary

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This ruling by L. Gacheru J of the High Court at Nairobi, delivered on 31st August 2017, determined the Appellants'/Applicants' Notice of Motion dated 29th June 2015 brought under Order 10 Rule 11 and Order 22 Rule 25 of the Civil Procedure Rules, seeking stay of execution pending the hearing of Machakos High Court Civil Appeal No. 72 of 2015. The applicants contended that interlocutory judgment was entered against them in default of filing a defence without service of a hearing notice despite appearance through counsel, that their application to set aside the judgment was dismissed by the Mutomo Magistrate's Court on 8th April 2015, and that eviction orders were pending execution, which would render their appeal nugatory and render them homeless. The respondent opposed, averring that the appellants had already been evicted and that the application was therefore overtaken by events. The court applied the established principles for stay of execution pending appeal, including the preservation of the subject matter and whether the appeal would be rendered nugatory. It found that the ruling sought to be stayed was a dismissal of the applicants' own application, which gave no positive order capable of being stayed; the applicants had not sought to stay the exparte judgment itself. The application was dismissed entirely with costs in the cause. The court directed the appellants to set the appeal down for hearing within 30 days and, noting that the matter fell within the jurisdiction of the Environment and Land Court at Machakos, transferred the appeal there forthwith for final hearing and determination.

Key legal issues

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01

Whether there is a positive order capable of being stayed

Holding

The ruling of 8th April 2015 merely dismissed the appellants' application to set aside the interlocutory judgment; being a dismissal order, it contains no positive order warranting a stay

Reasoning

The court distinguished between the exparte judgment entered against the appellants and the ruling dismissing their application to set it aside. The appellants had not sought to stay the exparte judgment itself but only the dismissal ruling, which granted nothing. Since a stay preserves the status quo created by a positive order, and no positive order existed in the ruling, there was nothing capable of being stayed.

p. 3
02

Whether the application is overtaken by events

Holding

The respondent alleged that the decree was executed, the appellants having been evicted, so there was nothing left to stay

Reasoning

The respondent averred that the appellants were evicted from the suit land and produced an eviction order allegedly executed by the OCS Mutomo Police Station. If the decree has already been executed, an order for stay of execution serves no purpose because the subject matter of the stay no longer exists.

p. 2

Legal principles established

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  • A dismissal order that grants nothing cannot be the subject of a stay of execution

Court orders

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  1. 1.The appellants'/applicants' application dated 29th June 2015 is dismissed entirely with costs being in the cause
  2. 2.The appellants are directed to set the appeal down for hearing expeditiously and not later than 30 days from the date of the ruling
  3. 3.The matter is transferred to Machakos Environment and Land Court forthwith for the final hearing and determination of the appeal

Authorities

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Legislation

  • Civil Procedure RulesOrder 10 Rule 11
  • Civil Procedure RulesOrder 22 Rule 25

Cases cited (2)

  • Consolidated Marine v Nampijja & Another
    Civil Application No. 93 of 1989
  • Council of Legal Education & Another v Ritta Biwott
    Civil Appeal No. 238 of 1994
On appeal from
Mutomo Law Courts (Senior Resident Magistrate's Court)
SRMCC No. 29 of 2014
Jurisdiction invoked
Appellate jurisdiction over the subordinate court, with the matter directed to be transferred to the Environment and Land Court at Machakos

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, "Kiviu Vata & another v Kasiki Makaya [2017] KEELC 3809 (KLR)", Case Analysis (2017). Not stated on the face of the ruling (arising from Mutomo SRMCC No. 29 of 2014; related to Machakos High Court Civil Appeal No. 72 of 2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2017/3809/eng@2017-08-31

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