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ELCDismissedNotice of Motion dated 9th May, 2018 (suit pending at Mombasa; parties' land known as Title Number CR.67802 LR No.29878)· [2019] KEELC 4824 (KLR)

Salim Mwana Jamila & 4 others v Betty Wanjiku Kiura [2019] KEELC 4824 (KLR)

High Court of Kenya
30 January 2019
CYC.K. Yano
1,856 words in judgment
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The bottom line

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A Kenyan court refused to stay a ruling that only dismissed an injunction, because dismissal orders with nothing to enforce cannot be stayed.

What this practically means

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Executive summary

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The plaintiffs/applicants moved the High Court at Mombasa by Notice of Motion dated 9th May 2018 under Order 42 rule 6(1) & (2) of the Civil Procedure Rules and Sections 1A, 1B, 3A and 63 of the Civil Procedure Act, seeking stay of execution of the ruling and order of 2nd May 2018 pending the lodging, hearing and determination of an appeal in the Court of Appeal. The ruling of 2nd May 2018 had dismissed the plaintiffs' application for a temporary injunction against the defendant, the court having found the defendant in occupation for several years of land registered in her name (LR No.13003 CR 31857), distinct from the land the plaintiffs claimed under title CR.67802 LR No.29878. The defendant opposed, contending there was no positive and enforceable order capable of being stayed, only a negative dismissal with costs. The court framed a single issue: whether stay should be granted. Applying the three conditions in Order 42 Rule 6, the court found the application filed within about 8 days, so no undue delay. However, the applicants failed to demonstrate substantial loss: the ruling had nothing positive to execute, being a negative order dismissing the injunction application; the allegation that the suit land might be alienated was unproved; and the suit land would remain available post-appeal, so the appeal would not be rendered nugatory. No security was required since stay was refused. The application was dismissed with costs to the defendant/respondent. The court was careful not to opine on the merit of the intended appeal.

Key legal issues

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Whether the requirements of Order 42 Rule 6 for stay of execution pending appeal were satisfied

Holding

The application was filed timeously (about 8 days), but no substantial loss was demonstrated and the order sought to be stayed was a negative order with nothing to execute; stay was refused.

Reasoning

The court found no delay, the order having been made on 2nd May 2018 and the application filed on 10th May 2018. However, the ruling of 2nd May 2018 merely dismissed the plaintiffs' injunction application, having found the defendant in occupation of the suit property; it ordered no party to do or refrain from doing anything capable of being stopped. The claim of possible alienation of the suit land was unproved, and the suit land would remain the subject matter after the appeal, so the appeal would not be rendered nugatory. No security was necessary since stay was refused.

p. 3

Legal principles established

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  • Stay of execution is discretionary and must be exercised judiciously upon the three principles in Order 42 Rule 6: no undue delay, substantial loss, and security.
  • A negative order that merely dismisses an application and directs no party to do or refrain from doing anything is incapable of execution and cannot be stayed.

Court orders

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  1. 1.Dismissal of the application dated 9th May 2018
  2. 2.Costs of the application to the respondent/defendant

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6(1) & (2)
  • Civil Procedure ActSections 1A, 1B, 3A and 63
  • Land Registration Actnot specified
  • Constitution of Kenyanot specified (referred to generally)

Cases cited (1)

  • H. M. Butt v The Rent Restriction Tribunal (NBI) County Appeal Civil Appeal No.6 of 1979
Jurisdiction invoked
Order 42 rule 6(1) & (2) of the Civil Procedure Rules and Sections 1A, 1B, 3A and 63 of the Civil Procedure Act

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, "Salim Mwana Jamila & 4 others v Betty Wanjiku Kiura [2019] KEELC 4824 (KLR)", Case Analysis (2019). Notice of Motion dated 9th May, 2018 (suit pending at Mombasa; parties' land known as Title Number CR.67802 LR No.29878). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2019/4824/eng@2019-01-30

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