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ELCDismissedELC Appeal at Thika (Notice of Motion dated 25th June 2019)· [2020] KEELC 642 (KLR)

Francis Muiruri Kamunyu v Kennedy Orumo Ong’era [2020] KEELC 642 (KLR)

Environment and Land Court
12 November 2020
2,165 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to stop a land dispute judgment taking effect, confirming that a dismissal of a case cannot be 'stayed' on appeal.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Thika (L. Gacheru J) determined a Notice of Motion dated 25th June 2019 by the Appellant, Francis Muiruri Kamunyu, seeking a stay of execution of the judgment and decree of Hon. C.A Otieno Omondi, Principal Magistrate, Thika, delivered on 31st October 2018, together with a temporary injunction restraining the Respondent, Kennedy Orumo Ong'era, from trespassing on or constructing on plot no. Ruiru/Kiu Block 6/773. The appellant alleged he was the registered owner of the suit property and that the Respondent, from whom he had sold a plot excised from L.R 551/8867 under an agreement dated 28th May 2008 for Kshs. 270,000, was building on the wrong parcel. The Respondent countered that the property he bought was registered as Githurai Ting'ang'a vide certificate No. 551/L.R No. 8867, that he took possession and built in 2010 without objection, and that the appellant's lease did not correspond to the parcel sold. The court framed two issues: entitlement to stay of execution and to injunctive orders. On the first, applying Order 42 Rule 6(2) and Western College v Oranga as reaffirmed in John Mbua Muthoni v Ruth Muthoni Kariuki, the court held the trial judgment was a negative order - a bare dismissal with costs - incapable of being stayed. On the second, applying Giella v Cassman Brown and Mrao v First American Bank, the court found no prima facie case since the claim had already been dismissed and stay refused, and the conditions for an injunction are sequential. The application was dismissed entirely with costs to the Respondent.

Key legal issues

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01

Whether a stay of execution could issue pending appeal

Holding

No stay could issue because the trial court's judgment was a negative order - a dismissal with costs imposing nothing to be executed.

Reasoning

Order 42 Rule 6(2) requires substantial loss, absence of unreasonable delay and security. However, the threshold enquiry is whether there is an order capable of execution. The trial court merely dismissed the appellant's suit with costs; it ordered no party to do or refrain from doing anything. Following Western College v Oranga and John Mbua Muthoni v Ruth Muthoni Kariuki, the court held that a dismissal is a negative order with nothing to stay, save potentially costs.

p. 2
02

Whether the Applicant established a prima facie case for injunctive relief

Holding

The Applicant failed to establish a prima facie case with a probability of success, so the injunction could not issue.

Reasoning

Applying Mrao Ltd v First American Bank of Kenya, the court asked whether an apparent right had been infringed. The appellant claimed the Respondent encroached on Ruiru/Kiu Block 6/773, but the judgment appealed against had dismissed that very claim. Since there was a valid order against him and stay had been refused, the appellant had no remaining claim to the land, and the sequential Giella conditions could not advance past the first stage.

p. 3

Legal principles established

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  • A negative order - a bare dismissal of a suit with no positive obligation imposed on any party - is not capable of being stayed under Order 42 Rule 6 of the Civil Procedure Rules.
  • The conditions for a temporary injunction are sequential: the second and third conditions arise only if the applicant first establishes a prima facie case with a probability of success.

Court orders

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  1. 1.The Notice of Motion Application dated 25th June 2019 is dismissed entirely with costs to the Respondent

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(2)
  • Civil Procedure Rules, 2010Order 21 rule 1

Cases cited (7)

  • Western College Farts And Applied Sciences vs Oranga & Others
    [1976] KLR 63
  • John Mbua Muthoni & Another vs Ruth Muthoni Kariuki
    (2017) eKLR
  • R v The Commissioner for Investigations & Enforcement Ex Parte Wananchi Group of Kenya Limited
    [2014] eKLR
  • Giella vs Cassman Brown & Co. Ltd
    1973 EA 358
  • E.A Industries vs Trufoods
    (1972) EA 420
  • Mrao Ltd vs First American Bank of Kenya Ltd & Others
    (2003) KLR
  • Kenya Commercial Finance & Co. Ltd vs Afraha Education Society
    (2001) 1EA 86
On appeal from
Principal Magistrate's Court, Thika
ELC No. 16 of 2013
Jurisdiction invoked
Appellate supervisory jurisdiction of the Environment and Land Court over appeals from the magistrates' courts; stay of execution sought under Order 42 Rule 6(2) of the Civil Procedure Rules, 2010 pending appeal

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, "Francis Muiruri Kamunyu v Kennedy Orumo Ong’era [2020] KEELC 642 (KLR)", Case Analysis (2020). ELC Appeal at Thika (Notice of Motion dated 25th June 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/642/eng@2020-11-12

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