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ELCDismissedNot stated in judgment (application dated 25th November 2019, filed 5th December 2019)· [2020] KEELC 3039 (KLR)

Gilbert Kimani Nyumu v Gidion Kipkoech Kiptisia [2020] KEELC 3039 (KLR)

Environment and Land Court
23 April 2020
MOM. A. ODENY
1,958 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 stay a dismissal of an appeal because dismissal is a 'negative order' that requires no enforcement—so stay applications must target the actual order being appealed.

What this practically means

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Executive summary

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This Environment and Land Court ruling at Eldoret, delivered by M. A. Odenty J on 23rd April 2020, determined an application dated 25th November 2019 seeking maintenance of status quo over title to parcel No. IRONG/ITEN/600 pending hearing of the application and an intended appeal, plus costs. The applicant had earlier lost his appeal in this court, which was dismissed on 17th October 2019 with costs. Counsel for the applicant relied on Order 42 Rule 6(2) of the Civil Procedure Rules, arguing no unreasonable delay and willingness to furnish security, and warned that the respondent might transfer or charge the land, rendering the appeal nugatory. The respondent, through Mr Arap Mitei, argued the court was functus officio after dismissing the appeal, that the orders sought were in substance injunctive, and that a dismissal is a negative order incapable of being stayed, relying on Tahir Sheikh Said Investments, Charles Munyendo Olingo and George Ole Sangui. The court framed a single issue: whether a negative order is capable of being stayed. Following Abdulrahman C. Kirao, Raymond M Omboga and Muhamed Yakub, the court held that a dismissal order cannot be enforced or executed and that stay can only issue against the order actually appealed against. The applicant was also found not to have demonstrated substantial loss, the cornerstone of a stay application. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether a negative order (dismissal of appeal) is capable of being stayed

Holding

No - a dismissal order is negative, not capable of execution, and cannot be stayed

Reasoning

The court relied on George Ole Sangui v Kedong Ranch Ltd, Abdulrahman C. Kirao v Said Seif and Raymond M Omboga v Austine Pyan Maranga, holding that dismissal of a claim simply leaves the party in the position it was in before suit; there is nothing to execute and therefore no substantial loss or nugatory-appeal analysis arises.

p. 2
02

Whether the applicant satisfied the Order 42 Rule 6(2) threshold for stay

Holding

The applicant failed to demonstrate substantial loss, which is the cornerstone of a stay application

Reasoning

The court found the applicant unclear whether he sought stay or status quo, and found that substantial loss must be clearly demonstrated in the supporting affidavit; the applicant did not convince the court the threshold was met.

p. 3

Legal principles established

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  • A negative order dismissing a suit or appeal is incapable of execution and cannot be stayed
  • Stay of execution pending appeal can only be granted against the order being appealed against

Court orders

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  1. 1.The application dated 25th November 2019 and filed on 5th December 2019 is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)

Cases cited (7)

  • Tahir Sheikh Said Investments Ltd v Administrator, TSS Grain Millers Ltd & 2 others
    [2019] eKLR
  • Chembe Katana Changi v Ministry of Lands & Settlement & 4 others
  • Charles Munyendo Olingo v Salim Chetechi Makokha & another
    [2019] eKLR
  • George Ole Sangui v Kedong Ranch Limited
    CA NAI 55 OF 2015
  • Abdulrahman C. Kirao & 3 others v Said Seif & 3 others
    [2019] eKLR
  • Raymond M Omboga v Austine Pyan Maranga
    Kisii HCCA No. 15 of 2010
  • Muhamed Yakub & Another v Mrs Badur Nasa
    Civil Application No. Nai. 285 of 1999
On appeal from
Subordinate Court (magistrates' court)
Not stated
Jurisdiction invoked
Order 42 Rule 6(2) of the Civil Procedure Rules (stay of execution pending appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Gilbert Kimani Nyumu v Gidion Kipkoech Kiptisia [2020] KEELC 3039 (KLR)", Case Analysis (2020). Not stated in judgment (application dated 25th November 2019, filed 5th December 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3039/eng@2020-04-23

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