Thomas Schiering v Nereah Michael Said & 2 others [2020] KEELC 1751 (KLR)
The bottom line
#A Kenyan court refused to pause a land case on appeal because the earlier ruling made no enforceable order, so there was nothing to stay.
What this practically means
#Executive summary
#Key legal issues
#Whether stay of proceedings pending appeal should be granted
The application was dismissed because the ruling sought to be appealed against contained no positive order capable of being stayed, and a stay would only delay the suit
The court distinguished stay of proceedings from stay of execution, holding that the threshold for staying proceedings is high because it interrupts access to justice. Applying the Re Global Tours test, the court found the intended appeal would not be rendered nugatory since the 16th September 2019 ruling was a negative order merely leaving the parties to argue their cases. Granting the stay would serve only to delay the matter, contrary to the interests of justice.
Whether the intended appeal would be rendered otiose or nugatory without a stay
It would not; the refusal to strike out the suit left the parties in their prior position with appeal rights intact
The court held that stay orders preserve the subject matter of an appeal, but the impugned ruling merely declined to strike out the suit. Since no positive orders issued, there was nothing to execute, and the defendants retained their right of appeal on the substantive issues. The contention that the appeal would be rendered otiose therefore did not arise.
Legal principles established
#- Stay of proceedings pending appeal is a discretionary exercise in the interests of justice; the test is high and stringent because a stay interferes with the right to a fair hearing
- A negative order dismissing an application is incapable of execution and cannot found a stay
Court orders
#- 1.The Notice of Motion dated 22nd October 2019 seeking stay of proceedings is dismissed
- 2.Costs of the application awarded to the plaintiff
- Jurisdiction invoked
- Order 42 Rule 6, Order 51 Rule 1 of the Civil Procedure Rules and Sections 3 and 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Thomas Schiering v Nereah Michael Said & 2 others [2020] KEELC 1751 (KLR)", Case Analysis (2020). ELC Case (Mombasa), Notice of Motion dated 22nd October 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1751/eng@2020-03-11
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.