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ELCDismissedNot stated in the excerpt· [2019] KEELC 1888 (KLR)

Rahab Wanjiru Kiarie v Embakasi Ranching Company Limited & another [2019] KEELC 1888 (KLR)

Environment and Land Court (appeal from Milimani Chief Magistrate's Court)
8 August 2019
KBK. Bor
633 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Environment and Land Court dismissed Rahab Kiarie's bid to stop Ruai land titles being issued because she couldn't prove the loss she'd suffer.

What this practically means

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Executive summary

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The Appellant, Rahab Wanjiru Kiarie, appealed against a ruling delivered on 04/04/2014 and, by an application dated 19/01/2018, sought stay of the processing and issuance of title deeds over two parcels of land in Ruai (L.571-C812 Block 136/2960 and P.3695-C813 Block 136/2959) pending hearing of the appeal, plus costs. She deponed that she purchased shares in the 1st Respondent, Embakasi Ranching Company Limited, in 1990, fully paid the consideration, and had the suit properties transferred to her; that the 1st Respondent later authorised a stranger to occupy her property while she was hospitalised with colon cancer; that her earlier suit, Milimani CMCC No. 10278/2006, was dismissed for want of prosecution on 12/01/2010 when her advocates failed to attend; and that in 2018 she learnt titles were being processed in favour of the 2nd Respondent. The Respondents were served but filed no responses. The court held that the legal burden of demonstrating substantial loss lay on the Applicant and that she failed to discharge it, there being insufficient evidence to justify stay. It further held that the order dismissing her suit was a negative order incapable of being stayed. The application dated 19/01/2018 was dismissed with no orders as to costs. Judgment delivered by K. Bor, J, at Nairobi on 8 August 2019; no appearance for the Respondents.

Key legal issues

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01

Whether the Appellant satisfied the conditions for stay pending appeal

Holding

The application was dismissed for failure to demonstrate substantial loss and because the dismissal order was a negative order that cannot be stayed

Reasoning

The court held that the legal burden lay on the Applicant to show the loss she would suffer if stay was not granted. Despite filing an affidavit and a supplementary affidavit with supporting documents, the Appellant did not demonstrate the loss she stood to suffer. The Respondents did not respond to the application, but the Appellant's own evidence was insufficient. Further, since her suit had been dismissed for want of prosecution, the resulting order was negative and not capable of being stayed.

p. 1
02

Whether a dismissal order is capable of being stayed

Holding

An order dismissing a suit is a negative order incapable of being stayed

Reasoning

The court reasoned that the order of 04/04/2014 dismissing the Appellant's suit for want of prosecution was a negative order, meaning it did not compel the Appellant to do anything and therefore nothing was available to be stayed. This disposed of the stay application independently of the evidential deficiency.

p. 1

Legal principles established

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  • The party applying for stay bears the legal burden of adducing evidence of the loss it will suffer if stay is not granted.
  • An order dismissing a suit is a negative order incapable of being stayed.

Court orders

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  1. 1.Dismissal of the Appellant's application dated 19/01/2018 with no orders as to costs
On appeal from
Milimani Chief Magistrate's Court
CMCC No. 10278 of 2006
Jurisdiction invoked
Appellate jurisdiction over the subordinate court's ruling of 04/04/2014 (specific statutory basis not stated in the judgment)

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, "Rahab Wanjiru Kiarie v Embakasi Ranching Company Limited & another [2019] KEELC 1888 (KLR)", Case Analysis (2019). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/1888/eng@2019-08-08

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