Rhoda Mongina Ondoro & 2 others v Johnstone Nyanyuki Menge [2020] KEELC 1156 (KLR)
The bottom line
#A Kenyan court refused to protect an appellant's land because a dismissed suit leaves nothing to 'stay' — and temporary injunctions don't extend to appeals.
What this practically means
#Executive summary
#Key legal issues
#Whether a stay of execution can be granted where the decree is a negative order
No; a dismissal of suit with costs yields no positive order capable of execution, so no stay of execution can issue
The court accepted the Respondents' submission that the suit was merely dismissed with costs. Following Marangu Rucha & Another v Attorney General & 10 Others, it is not possible to stay 'execution' or 'implementation' where the action was dismissed. The only remaining enforceable obligation is payment of costs, which is not the subject of a stay of execution in the sense sought by the Applicant.
Whether the court can grant an injunction pending an intended appeal under Order 40 rules 1 and 2 of the Civil Procedure Rules
No; the trial court's temporary injunction power is limited to its original jurisdiction until disposal of the suit, unlike the Court of Appeal's rule 5(2)(b) jurisdiction
Relying on Western College of Arts and Applied Sciences v Oranga & Others, the court held that the High Court has no specific power to issue a temporary injunction in connection with an order for stay of execution of a decree that is the subject of an appeal. Order 40 relief runs only 'until the disposal of the suit or until further orders' and cannot be used to preserve the subject matter pending appeal.
Legal principles established
#- A stay of execution cannot issue in respect of a negative decree (a dismissal of suit) since there is nothing to execute except costs
- The trial court's power to grant temporary injunctions under Order 40 rules 1 and 2 of the Civil Procedure Rules is limited to its original jurisdiction and does not extend to preserving the subject matter of an appeal
Court orders
#- 1.The Notice of Motion dated 16th December 2019 is dismissed with costs to the Respondents
- Jurisdiction invoked
- Order 40 rules 1 and 2 of the Civil Procedure Rules (inherent motion jurisdiction of the trial court pending intended appeal to the Court of Appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rhoda Mongina Ondoro & 2 others v Johnstone Nyanyuki Menge [2020] KEELC 1156 (KLR)", Case Analysis (2020). Not stated in judgment (Notice of Motion dated 16th December 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1156/eng@2020-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.