Elijah Njeru Mugo & another v Njeru Samwel M’rwingo [2019] KEELC 2095 (KLR)
The bottom line
#The High Court in Embu ruled you cannot appeal a dismissed case, but you can still get injunctions and land restrictions to protect your position while the appeal is decided.
What this practically means
#Executive summary
#Key legal issues
#Availability of stay under Order 42 Rule 6 of a negative decree
Stay is not available because the decree dismissed the suit and contains no positive orders capable of execution
The court adopted the reasoning in Western College of Arts & Applied Sciences v Oranga, that where the court below merely dismissed a suit without ordering any party to do or refrain from doing anything, the only thing capable of execution is costs, and there is nothing arising from such a judgment for which stay can be granted. This was reinforced by Kilindini Warehouses and Sonalux Limited.
Entitlement to interlocutory injunction and inhibition pending appeal
The court found the appellants entitled to preservation measures: a temporary injunction and an inhibition to maintain the status quo pending the appeal
There was uncontroverted evidence that the appellants had utilized and developed part of the suit property since 1999. The court reasoned that evicting them during the pendency of the appeal would cause greater hardship than maintaining the status quo, and that alienation of the property before the appeal concluded could render the appeal nugatory, producing a barren result if the appellants ultimately succeeded.
Legal principles established
#- A dismissal order is a negative order which is not capable of being stayed under Order 42 Rule 6
- The court has a duty to preserve property in issue to prevent an appeal from being rendered nugatory
Court orders
#- 1.An order of temporary injunction restraining the Respondent, his agents, servants or assigns from interfering with the 1st Appellant's user and enjoyment of tea bushes and trees growing on Title Kagaari/Kanja/1011 pending the hearing and determination of the appeal
- 2.The Land Registrar Embu shall register an order of inhibition to prevent any dealings with Title No. Kagaari/Kanja/1011 pending the conclusion of the appeal
- 3.Costs of the application shall be costs in the appeal
- 4.The Appellants shall file a record of appeal and expeditiously prosecute the appeal within two years, in default of which the interim orders shall lapse
- On appeal from
- Magistrate's Court at Runyenjes
- Runyenjes SRMCC 3/18
- Jurisdiction invoked
- Order 40 Rule 1(a) & (b), Order 42 Rule 6(1) & (2), Order 51 Rule 1 of the Civil Procedure Rules and sections 1, 1A, 1B, 3 & 3A of the Civil Procedure Act (Cap. 21)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Elijah Njeru Mugo & another v Njeru Samwel M’rwingo [2019] KEELC 2095 (KLR)", Case Analysis (2019). Notice of motion dated 4th March 2019 (appeal against judgement in Runyenjes SRMCC 3/18). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/2095/eng@2019-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.