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ELCDismissed(not stated in the judgment; application dated 18th November 2019 in a struck-out suit)· [2020] KEELC 1878 (KLR)

Peter Kimani Njenga v Mugo Kamambuni Mugo & 3 others [2020] KEELC 1878 (KLR)

Environment and Land Court of Kenya
25 June 2020
MOM.C. Oundo
1,966 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 refused to pause a ruling that struck out a land suit, because you cannot 'stay' an order that requires nothing to be done.

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 Nyahururu (M.C. Oundo, Judge) delivered on 25th June 2020 on the Applicant's Notice of Motion dated 18th November 2019, brought under Order 42 Rule 6 and Order 22 Rule 22 of the Civil Procedure Rules and Section 63 of the Civil Procedure Act, seeking stay of execution of the Court's ruling of 26th June 2018, which had struck out the Plaintiff's suit as statute-barred under Section 7 of the Limitation of Actions Act, with costs to the 2nd and 3rd Defendants. The 2nd and 3rd Respondents opposed, filing joint submissions framing three issues: whether the decree of 26th June 2018 was capable of being stayed, whether the threshold for stay was met, and costs. They argued the striking-out orders were negative orders incapable of execution, that the application was an omnibus 'mongrel of different rules', filed after inordinate delay of about 1 year 5 months, with no material showing substantial loss and no security offered. The court framed two issues and held that the three cumulative conditions under Order 42 Rule 6(2) - substantial loss, no unreasonable delay, and security - had not been met. Adopting Western College of Arts and Applied Sciences v Oronga and Sonalux Limited v Barclays Bank, the court held the striking-out orders were negative orders imposing no positive obligation, and hence incapable of execution. The application was dismissed with costs to the 2nd and 3rd Respondents.

Key legal issues

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01

Whether stay of execution can issue in respect of an order striking out a suit with costs

Holding

No - a striking-out order with costs is a negative order; the only executable element is costs, and stay is not available as sought.

Reasoning

The court adopted the line of authority from Western College of Arts and Applied Sciences v Oronga through Sonalux and Milcah Jeruto holding that where a court merely dismisses or strikes out a suit, there is nothing to execute except costs. Section 2 of the Civil Procedure Act defines a decree holder by reference to an order capable of execution. The 26th June 2018 ruling imposed no positive obligation capable of being stayed.

p. 3
02

Whether the Applicant met the Order 42 Rule 6(2) conditions for stay pending appeal

Holding

No - substantial loss was not demonstrated, the application was filed 1 year 5 months after the ruling (unreasonable delay), and no security was offered.

Reasoning

The court held that the three conditions under Order 42 Rule 6(2) are conjunctive and must all be satisfied. The Applicant filed the application about 17 months after the striking-out ruling, filed no material showing substantial loss, offered no security, and had not prosecuted the memorandum of appeal filed in August 2018. Unexplained and inordinate delay alone disentitled him to the discretionary relief.

p. 3

Legal principles established

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  • The three conditions in Order 42 Rule 6(2) for stay pending appeal are cumulative and cannot be severed; all must be met simultaneously.
  • A negative order - one that does not order a party to do, refrain from doing anything, or pay any sum - is incapable of execution and stay of execution cannot issue in respect of it.

Court orders

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  1. 1.The Applicant's Notice of Motion dated 18th November 2019 is dismissed with costs to the 2nd and 3rd Respondents

Authorities

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Legislation

  • Limitation of Actions ActSection 7
  • Civil Procedure Rules, 2010Order 42 Rule 6 (including 6(2))
  • Civil Procedure Rules, 2010Order 22 Rule 22
  • Civil Procedure ActSection 63(e) (as cited, '63 E (sic)')
  • Civil Procedure ActSection 2 (definition of decree holder)

Cases cited (8)

  • Kanwal Sarjit Singh Dhiman vs Keshaji Jivarj Shah
    [2008] eKLR
  • Milcah Jeruto vs Fina Bank Ltd
    [2013] eKLR
  • B vs Attorney General
    [2004] 1 KLR 431
  • Runda Water Limited & Another vs Timothy John Nicklin & Another
    [2017] eKLR
  • James Wangalwa & Another vs Agnes Naliaka Cheseto
    [2012] eKLR
  • Anne Njeri Mwangi vs Muzaffer Musafee Essajee & Another
    [2014] eKLR
  • Western College of Arts and Applied Sciences vs Oronga
    (1976) KLR 63 at p. 66
  • Sonalux Limited & Another v Barclays Bank of Kenya Limited & 2 others
    [2008] eKLR
Jurisdiction invoked
Order 42 Rule 6 and Order 22 Rule 22 of the Civil Procedure Rules, 2010 and Section 63 of the Civil Procedure Act (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, "Peter Kimani Njenga v Mugo Kamambuni Mugo & 3 others [2020] KEELC 1878 (KLR)", Case Analysis (2020). (not stated in the judgment; application dated 18th November 2019 in a struck-out suit). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1878/eng@2020-06-25

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