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ELCDismissedThika ELC Suit No. 449 of 2017 (Notice of Motion dated 20th September 2019)· [2020] KEELC 1595 (KLR)

Nehemiah Kimathi & Stella Nkatha Mwiraria v Grace Wambui Muriuki & 12 others [2020] KEELC 1595 (KLR)

Environment and Land Court
23 July 2020
LGL. GACHERU
2,348 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 confirmed you cannot get a stay of a judgment that simply dismissed your case—only substantive orders can be stayed.

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 20th September 2019 by the Plaintiffs/Applicants, Dr. Nehemiah Kimathi and another, whose suit in Thika ELC Suit No. 449 of 2017 had been dismissed with costs by Ong'ondo, J on 14th June 2019. The Applicants sought a stay of execution of that judgment and an injunction restraining the Defendants/Respondents from dealing with LR No. Ruiru/Ruiru East Block 7/53 and its purported subdivisions pending an intended appeal, plus leave to serve the 1st Respondent by advertisement. The Respondents opposed, arguing that a negative order dismissing a suit is incapable of being stayed, that no competent Notice of Appeal was served within the statutory period, that the Applicants had not demonstrated substantial loss or proposed security, and that the application was an abuse of process. The court identified a single issue: whether the Applicants were entitled to the orders sought. Applying Order 42 Rule 6 of the Civil Procedure Rules and the authorities including Western College v Oranga and the Nyong'o decision, the court held that the judgment of 14th June 2019 was a negative order merely dismissing the suit, with nothing capable of execution save costs, and that granting the orders sought would amount to granting an injunction that was not merited. The application was dismissed entirely with costs.

Key legal issues

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01

Whether a stay of execution can issue in respect of a judgment that merely dismissed the suit

Holding

No; a negative order dismissing a suit is incapable of being stayed as there is nothing to execute

Reasoning

The court applied the settled principle in Western College v Oranga and the Nyong'o decision that where a court merely dismisses a suit with costs, it has not ordered any party to do or refrain from doing anything, so the only execution possible is in respect of costs and there is nothing for a stay to enforce or restrain. Granting the orders sought would amount to granting an injunction and reinstating a dismissed suit.

p. 3
02

Whether the Applicants met the conditions for stay under Order 42 Rule 6 of the Civil Procedure Rules

Holding

Having found the underlying order was a negative order, the court did not reach the substantive conditions; the application failed in its entirety

Reasoning

The court recited the three conditions under Order 42 Rule 6 (substantial loss, unreasonable delay, security) but held that the threshold problem was that the judgment sought to be appealed was a negative order. Since there was no order capable of execution, the discretion under the rule could not be exercised in the Applicants' favour.

p. 3

Legal principles established

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  • A negative order, such as an order dismissing a suit, is not capable of being stayed

Court orders

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  1. 1.The Notice of Motion Application dated 20th September 2019 is dismissed entirely with costs

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 46 Rule 6(2)
  • Civil Procedure Rules, 2010Order 42 Rule 6
  • Court of Appeal Rulesrule 77(1)
  • Court of Appeal Rulesrule 5(2)(b)
  • Civil Procedure Rules, 2010Order 21 rule 1

Cases cited (4)

  • Western College Farts And Applied Sciences Vs Oranga & Others
    [1976] KLR 63
  • John Mbua Muthoni & Another v Ruth Muthoni Kariuki
    (2017) eKLR
  • R v The Commissioner for Investigations & Enforcement Ex Parte Wananchi Group of Kenya Limited
    [2014] eKLR
  • The Hon. Peter Anyang' Nyong'o & 2 Others vs. The Minister for Finance & Another
    Civil Application No. Nai. 273 of 2007
On appeal from
Environment & Land Court (Ong'ondo, J)
Thika ELC Suit No. 449 of 2017
Jurisdiction invoked
Civil Procedure Rules, 2010, Order 42 Rule 6 (stay of execution pending appeal); Order 46 Rule 6(2) invoked by the parties

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, "Nehemiah Kimathi & Stella Nkatha Mwiraria v Grace Wambui Muriuki & 12 others [2020] KEELC 1595 (KLR)", Case Analysis (2020). Thika ELC Suit No. 449 of 2017 (Notice of Motion dated 20th September 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1595/eng@2020-07-23

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