Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNotice of Motion dated 18th May 2018 (ruling delivered 21st February 2019)· [2019] KEELC 4542 (KLR)

Esther Nyambura Kariuki v Simon Muthuku Munjuga [2019] KEELC 4542 (KLR)

Environment and Land Court
21 February 2019
MOM.C. Oundo
1,721 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~7 min to read original · ~4 min brief

The bottom line

#

A Kenyan court refused to pause enforcement of a judgment because it contained no positive order against the applicant — you cannot stay what cannot be enforced.

What this practically means

#

Executive summary

#
This ruling of the Environment and Land Court at Nyahururu (Oundo, J) determined a Notice of Motion dated 18th May 2018 brought under Order 42 Rule 6(1) and Order 51(1) of the Civil Procedure Rules seeking stay of execution of a judgment delivered on 25th April 2018 (erroneously cited in the motion as a judgment of 28th January 2016) pending an intended appeal. The Applicant, relying on Florence Hare Mkaha and Focin Motorcycle, argued that substantial loss would result because the 4 acres of suit land were of high agricultural value and the Respondent could not reimburse him if the appeal succeeded; he offered to deposit the decretal amount in a joint interest-earning account. The Respondent, relying on James Ndonyu Njogu, countered that the judgment was a negative order incapable of being stayed. The court framed two issues: whether the Applicant discharged the Order 42 Rule 6(2) conditions, and what orders to make. It held that the three conditions are cumulative and cannot be severed, and — following Milcah Jeruto, Western College of Arts and Applied Sciences v Oronga and Sonalux Limited — that the 25th April 2018 judgment contained only negative orders against the Applicant: the suit was struck out, the counterclaim dismissed, the refund order ran against the Plaintiff, and each party bore its own costs. Nothing was executable against the Applicant, so stay could not issue in a vacuum. The application was dismissed with costs to the Respondent.

Key legal issues

#
01

Whether stay of execution pending appeal could issue against the judgment of 25th April 2018

Holding

The application failed because the orders in the judgment were negative orders not capable of execution

Reasoning

The judgment of 25th April 2018 struck out the plaintiff's suit, dismissed the counterclaim, ordered a refund of Ksh 84,000 by the plaintiff to the defendant, and directed each party to bear its own costs. The only positive order was the refund, payable by the Plaintiff, not the Applicant/Defendant. Since the court did not order the Applicant to do or refrain from doing anything or to pay any sum, there is nothing to execute against him and no stay can issue.

p. 3
02

Whether the three conditions in Order 42 Rule 6(2) are cumulative

Holding

They are cumulative and must all be satisfied simultaneously

Reasoning

The court read the word 'and' in Order 42 Rule 6(2) as requiring satisfaction of all three conditions — substantial loss, absence of unreasonable delay, and security — at the same time before stay can issue.

p. 2

Legal principles established

#
  • The three conditions for stay of execution under Order 42 Rule 6(2) cannot be severed and must all be met simultaneously
  • Stay of execution cannot be granted in respect of a negative order — one that does not require a party to do or refrain from doing anything or to pay any sum

Court orders

#
  1. 1.The Applicant's Notice of Motion dated 18th May 2018 and filed on 22nd May 2018 is dismissed
  2. 2.Costs of the application awarded to the Respondent

Authorities

#

Legislation

  • Constitution of KenyaArticle 159(2)(d)
  • Civil Procedure ActSections 1A, 1B and 2
  • Civil Procedure RulesOrder 42 Rule 6(1), 6(2) and Order 51(1)

Cases cited (6)

  • Florence Hare Mkaha vs Pwani Tawakal Mini Coach & Another
    [2014] eKLR
  • Focin Motorcycle Co. Ltd vs Ann Wambui Wangui & Another
    [2018] eKLR
  • James Ndonyu Njogu vs Muriuki Macharia
    [2017] eKLR
  • Milcah Jeruto vs Fina Bank Ltd
    [2013] eKLR
  • Western College of Arts and Applied Sciences vs Oronga
    (1976) KLR 63 at p. 66
  • Sonalux Limited & Another v Barclays Bank of Kenya Limited & 2 others
    [2008] eKLR
Jurisdiction invoked
Order 42 Rule 6(1) and Order 51(1) of the Civil Procedure Rules; Article 159(2)(d) of the Constitution and Sections 1A and 1B of the Civil Procedure Act

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Esther Nyambura Kariuki v Simon Muthuku Munjuga [2019] KEELC 4542 (KLR)", Case Analysis (2019). Notice of Motion dated 18th May 2018 (ruling delivered 21st February 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4542/eng@2019-02-21

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