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ELCDismissedNot stated in judgment (Notice of Motion dated 8th June 2020)· [2020] KEELC 468 (KLR)

Simon Warui Mwangi & another v Grace Ruguru Mwangi & another [2020] KEELC 468 (KLR)

Environment and Land Court
20 November 2020
ECE.C. Cherono
1,871 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court refused to pause a ruling because striking out a suit creates no order to enforce, so there was nothing to stay.

What this practically means

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Executive summary

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By a Notice of Motion dated 8th June 2020, the applicants, who were the plaintiffs in the suit, sought a stay of execution of the judgment delivered on 29th May 2020, together with an order maintaining the status quo over rice holding No. 3277, on the basis that they had filed a Notice of Appeal and intended to appeal. The application was anchored on Order 42 Rule 6 of the Civil Procedure Rules. The applicants, through the affidavit of Simeon Warui Mwangi, argued that they had an arguable appeal, that the respondent was threatening to forcefully take over 2 acres of the rice holding, and that the appeal would be rendered nugatory if the status quo was not maintained. The 1st respondent opposed the application, contending that the twin conditions for stay under Order 42 Rule 6(2) had not been met, that no substantial loss had been demonstrated, and that there was nothing to stay because the plaintiffs' suit had been struck out, which was a negative order incapable of execution. In a ruling read and delivered at Kerugoya on 20th November 2020, E.C. Cherono, ELC Judge, applied the principles in Western College of Arts and Applied Sciences v Oranga and Kenya Commercial Bank Ltd v Tamarind Meadows Ltd, holding that stay of execution lies only in respect of a positive order. Since the judgment of 29th May 2020 had merely struck out the suit, leaving nothing to be executed save costs, the application was dismissed with costs.

Key legal issues

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01

Whether stay of execution can be granted over a judgment that struck out the suit

Holding

Stay of execution does not lie where the judgment is a negative order; striking out the suit left nothing to be executed except costs.

Reasoning

The court invoked Order 42 Rule 6(2), which requires substantial loss, no unreasonable delay and security. Relying on Western College of Arts and Applied Sciences v Oranga and KCB v Tamarind Meadows, the court reasoned that stay requires a positive order capable of execution. Since the suit had merely been struck out, no party was ordered to do or refrain from doing anything, so there was nothing to stay.

p. 3

Legal principles established

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  • A stay of execution can only lie where there is a positive order requiring a party to do or refrain from doing something or to pay a sum; a negative order such as striking out or dismissal of a suit is incapable of being stayed save in respect of costs.

Court orders

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  1. 1.The Notice of Motion dated 8th June 2020 seeking stay of execution and maintenance of status quo is dismissed with costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)

Cases cited (4)

  • Western College of Arts and Applied Sciences Vs Oranga & Others
    (1976–80) 1 K.L.R
  • Kenya Commercial Bank Limited Vs Tamarind Meadows Limited & 7 others
    (2016) eK.L.R
  • Kanwal Sarjit Singh Dhiman Vs Keshavji Juuraj Shah
    (2008) eK.L.R
  • Wilson Vs Church
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules

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, "Simon Warui Mwangi & another v Grace Ruguru Mwangi & another [2020] KEELC 468 (KLR)", Case Analysis (2020). Not stated in judgment (Notice of Motion dated 8th June 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/468/eng@2020-11-20

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