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ELCDismissedNotice of Motion dated 29th May, 2019 arising from Originating Summons (adverse possession), Kajiado/Kaputiei-South/45· [2020] KEELC 888 (KLR)

Samuel Kimintae Mparo & 5 others v Mathare Investments & Properties Ltd [2020] KEELC 888 (KLR)

Environment and Land Court
23 October 2020
OAO. A. Angote
1,700 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled you cannot appeal-stay a judgment that simply dismisses your case, because there is nothing to enforce.

What this practically means

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Executive summary

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The Plaintiffs, whose Originating Summons claiming adverse possession of Title Number Kajiado/Kaputiei-South/45 was dismissed on 15th May, 2020, moved the court by Notice of Motion dated 29th May, 2019 seeking stay of execution of that judgment pending an intended appeal, supported by an affidavit of the 6th Plaintiff asserting an arguable appeal, irreparable loss through eviction, and willingness to furnish security. The Defendant opposed, contending that the judgment was a negative order of dismissal producing no executable decree, with nothing to enforce. The court framed a single issue: whether the application had merit under Order 42 Rule 6 of the Civil Procedure Rules, 2010. Applying the requirement of substantial loss, the court relied on Kenya Shell Ltd v Kigibu and a line of Court of Appeal authority - Western College of Arts & Applied Sciences v Oranga, Oliver Collins Wanyama v Engineers Board of Kenya, Co-operative Bank v BIFU, KCB v Tamarind Meadows (citing Kanwal Sarjit Singh Dhiman), and Milcah Jeruto v Fina Bank - for the settled principle that stay of execution lies only against positive orders. Since the judgment of 15th May, 2020 merely dismissed the Originating Summons with costs and ordered no party to do or refrain from doing anything or to pay any sum, there was no positive order capable of being stayed. The application was found unmeritorious and dismissed with costs on 23rd October, 2020.

Key legal issues

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01

Whether substantial loss could result from execution of the judgment dismissing the Plaintiffs' adverse possession claim

Holding

No; the dismissal was a negative order incapable of execution save as to costs, so no stay could issue under Order 42 Rule 6

Reasoning

The court applied Order 42 Rule 6(2) CPR, requiring substantial loss from a positive, enforceable order. Relying on Court of Appeal authority (Kenya Shell; Western College v Oranga; Co-operative Bank v BIFU; KCB v Tamarind Meadows; Oliver Collins Wanyama; Milcah Jeruto), it held that a judgment that merely dismisses a suit orders no party to do or refrain from doing anything or to pay any sum, leaving nothing to stay except costs.

p. 2

Legal principles established

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  • An order for stay of execution pending appeal cannot issue in respect of a negative order of dismissal; there must be a positive order of the court capable of enforcement

Court orders

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  1. 1.The Plaintiffs' Application dated 29th May, 2019 (2020 as stated in the ruling) seeking stay of execution of the Judgment of 15th May, 2020 is dismissed
  2. 2.Costs of the Application to the Defendant

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6
  • Court of Appeal RulesRule 75
  • Civil Procedure Rules (former)Order 41 Rule 4

Cases cited (10)

  • Esther Wanjiku Mwangi & others vs. Wambui Ngarachu (sued as the legal representative of the Estate of Ngarachu Chege - Deceased)
    (2019) eKLR
  • Western College of Arts & Applied Sciences vs. Oranga & Others
    (1976) KLR 63
  • Charles Munyendo Olingo vs. Salim Chetechi Makokha & Another
    (2019) eKLR
  • Kenya Shell Limited vs. Benjamin Karuga Kigibu & Ruth Wairimu Karuga
    (1982-1988) 1 KAR 1018
  • Oliver Collins Wanyama vs. Engineers Board of Kenya
    [2019] eKLR
  • Co-operative Bank of Kenya Limited vs. Banking Insurance & Finance Union (Kenya)
    [2015] eKLR
  • Mugenyi & Co. Advocates v National Insurance Corporation
    Civil Appeal No. 13 of 1984
  • Kenya Commercial Bank Limited vs. Tamarind Meadows Limited & 7 Ors
    [2016] eKLR
  • Kanwal Sarjit Singh Dhiman vs. Keshavji Juvraj Shah
    [2008] eKLR
  • Milcah Jeruto vs. Fina Bank Ltd
    [2013] eKLR
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010 (stay of execution 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, "Samuel Kimintae Mparo & 5 others v Mathare Investments & Properties Ltd [2020] KEELC 888 (KLR)", Case Analysis (2020). Notice of Motion dated 29th May, 2019 arising from Originating Summons (adverse possession), Kajiado/Kaputiei-South/45. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/888/eng@2020-10-23

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