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ELCDismissed· [2020] KEELC 1454 (KLR)

Peter Mucheru Njuguna & 7 others v Attorney General & 4 others [2020] KEELC 1454 (KLR)

Environment and Land Court
6 August 2020
MOM.C. Oundo
1,902 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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A Kenyan court cannot order a stay of a judgment that dismissed a case outright, because there is nothing in that judgment to enforce or stop.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nakuru (M.C. Oundo, J) on a Notice of Motion dated 10th March 2020 brought by the Applicants under Order 42 Rule 6(1), Order 51 of the Civil Procedure Rules and Sections 1A and 3A of the Civil Procedure Act. The Applicants sought stay of execution of the judgment and decree of 23rd October 2018, which had dismissed their petition claiming an interest in land parcels Nyandarua/Passenga/226 and 227, pending appeal, and conservatory orders restraining the 4th and 5th Respondents from dealing with the suit land, which they described as family land allegedly being prepared for sale. The Applicants relied on the established conditions for stay: sufficient cause, substantial loss, no unreasonable delay and security. The Respondents, in written submissions, argued that the judgment dismissed the petition and was a negative order incapable of execution, that the Applicants had no proprietary interest capable of protection, and that the appeal had been lodged before the impugned judgment could be executed. The court framed two issues: whether the conditions for stay were discharged, and what orders should issue. Relying on the definition of a decree holder in Section 2 of the Civil Procedure Act and on Milcah Jeruto v Fina Bank Ltd, Western College of Arts and Applied Sciences v Oronga and Sonalux Ltd v Barclays Bank, the court held that a negative order dismissing a petition cannot be stayed because nothing is capable of execution except costs. It further held that no injunction or conservatory orders could attach since no positive and enforceable order was made. The application was dismissed with costs to the 4th and 5th Respondents.

Key legal issues

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01

Whether conditions for stay of execution under Order 42 Rule 6(2) were satisfied

Holding

The application fails at the threshold because the decree sought to be stayed is a negative order incapable of execution; no stay can issue.

Reasoning

The judgment of 23rd October 2018 dismissed the petitioners' petition with costs. Relying on Section 2 of the Civil Procedure Act defining a decree holder by reference to an order capable of execution, and on Western College of Arts and Applied Sciences and Sonalux, the court held that since no party was ordered to do anything, refrain from doing anything or pay any sum, there is nothing to stay; only costs could be executable.

p. 2
02

Whether conservatory/injunction orders could issue over the suit land pending appeal

Holding

No injunction or conservatory orders could issue as there was no positive enforceable order in the impugned judgment to which such relief could attach.

Reasoning

The court found the application for injunction or stay extraneous to the orders actually made, which directed no party to do or refrain from anything. The applicants' allegation that respondents were preparing to sell the land was unsupported by any agreement, and the applicants had been found to have no legal or proprietary interest in the suit properties capable of protection under Article 40 of the Constitution.

p. 3

Legal principles established

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  • An order of stay of execution cannot issue in respect of a negative order - a judgment that dismisses a suit and orders no party to do, abstain from doing anything, or pay any sum is incapable of execution.
  • Where the judgment sought to be appealed contains no positive and enforceable order, the court cannot grant injunction or conservatory orders premised on it.

Court orders

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  1. 1.The application for stay of execution pending appeal is dismissed.
  2. 2.The application for conservatory/injunction orders restraining dealings with Nyandarua/Passenga/226 and 227 is dismissed.
  3. 3.Costs of the application to the 4th and 5th Respondents.

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1)
  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Civil Procedure RulesOrder 42 Rule 2
  • Civil Procedure RulesOrder 51
  • Civil Procedure ActSection 1A
  • Civil Procedure ActSection 3A
  • Civil Procedure ActSection 2
  • Constitution of KenyaArticle 40

Cases cited (8)

  • NM vs EMN
    [2019] eKLR
  • Butt vs Rent Restriction Tribunal
    [1982] KLR
  • David Oyiare Ntungani vs Matuiya ole Naisuaku Orket
    [2017] eKLR
  • Sonalux Limited & Another vs. Barclays Bank of Kenya Limited
    [2008] eKLR
  • Daniel Lomagul Kandei & 2 Others vs Kamanga Holding Limited & 40 Others
    [2017] eKLR
  • Western College of Arts and Applied Sciences vs. Oronga
    (1976) KLR 63
  • Republic vs Kenya Wildlife Service & 2 Others
    [2007] eKLR
  • Milcah Jeruto vs Fina Bank Ltd
    [2013] eKLR
Jurisdiction invoked
Order 42 Rule 6(1), Order 51 of the Civil Procedure Rules and Sections 1A and 3A 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, "Peter Mucheru Njuguna & 7 others v Attorney General & 4 others [2020] KEELC 1454 (KLR)", Case Analysis (2020). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1454/eng@2020-08-06

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