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ELCDismissedNot stated in judgment· [2018] KEELC 4316 (KLR)

Isaac Wafula v John Simiyu & 2 others [2018] KEELC 4316 (KLR)

High Court of Kenya
21 February 2018
SMS. Mukunya
527 words in judgment
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The bottom line

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Kenya's High Court dismissed a bank's bid to stay an order refusing to reinstate its dismissed appeal, holding negative orders cannot be stayed.

What this practically means

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Executive summary

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This is a ruling by S. Mukunya J at Bungoma on a Notice of Motion filed under Sections 1A, 1B, 3 and 3A of the Civil Procedure Act and Order 50 Rule 20 and Order 51 Rule 15 of the Civil Procedure Rules 2010. The applicant sought a stay of execution of the costs decreed under the order of 3rd October 2017, pending the hearing of the application inter partes and pending an intended appeal against the dismissal of the applicant's earlier appeal. The applicant argued that a Notice of Appeal had been lodged, that the appeal had high chances of success and that it would be rendered nugatory without a stay. The respondent opposed, contending there was nothing to stay since the order of 3rd October 2017 merely declined to reinstate an appeal dismissed on 11th October 2016, and no decree capable of being stayed could arise from it. The court agreed, holding that an order refusing to reinstate a previously dismissed appeal is a negative order incapable of execution, relying on Court of Appeal and High Court authorities including Co-operative Bank of Kenya v Banking Insurance Finance (Kenya), Mugenyi & Co. Advocates v National Assurance Co-operation, Gichina Mwangi v Henry Mukora Mwangi, Executive Estates Ltd v Kenya Posts, and William Lerukan Konchella v Julius Tabarai Ole Maito Tampushi. The application was found misconceived and dismissed with costs.

Key legal issues

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01

Whether a negative order can be subject to a stay of execution

Holding

An order declining to reinstate a dismissed appeal is a negative order incapable of execution; no stay can issue against it

Reasoning

The court reasoned that the only order made on 3rd October 2017 was one refusing to reinstate an appeal already dismissed. Such an order does not require any party to do or refrain from doing anything and therefore cannot be executed. Relying on Court of Appeal authority, the court held a stay must serve a purpose and courts do not act in vain. The application was therefore misconceived.

p. 1

Legal principles established

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  • An order refusing to reinstate a dismissed appeal is a negative order not capable of execution and cannot be stayed

Court orders

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  1. 1.The application for stay of execution is dismissed with costs
Jurisdiction invoked
Section 1A, 1B, 3 and 3A Civil Procedure Act and Order 50 Rule 20 and Order 51 Rule 15 of the Civil Procedure Rules 2010

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, "Isaac Wafula v John Simiyu & 2 others [2018] KEELC 4316 (KLR)", Case Analysis (2018). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/4316/eng@2018-02-21

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