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ELCDismissedNotice of Motion dated 23rd April 2019 (in a suit concerning Plot No.3794/VI/MN and Plot No. MN/VI/4182 Mbuyuni)· [2020] KEELC 3384 (KLR)

Ishmael Mangi Katana & 57 others v Kenya Pipeline Company Ltd [2020] KEELC 3384 (KLR)

Environment and Land Court of Kenya
23 January 2020
CYC.K. Yano
1,710 words in judgment
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The bottom line

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Kenya's Environment and Land Court ruled you cannot get a stay of execution against a dismissed application, because a dismissal is a 'negative order' that cannot be enforced or stayed.

What this practically means

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Executive summary

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The plaintiffs, residents of Plot No.3794/VI/MN, moved the court by notice of motion dated 23rd April 2019 under Order 42 Rule 6(1) & (2) of the Civil Procedure Rules and Section 3A of the Civil Procedure Act, seeking stay of execution of the ruling and orders of 9th April 2019 dismissing their application for a temporary injunction, pending an intended appeal. They alleged imminent demolition of their houses by the respondent, owner of Plot No. MN/VI/4182 Mbuyuni, following a three-day vacant-possession notice dated 17th April 2019, and contended they occupied a different plot and would suffer irreparable harm. The respondent, through a replying affidavit of James Nyamongo, opposed the application, arguing the plots were distinct, that no notice had been issued in respect of the applicants' plot, that the earlier restraining order cited was expired and involved a different case and parties, that the supporting affidavit lacked authority from co-applicants, and that a mere dismissal was a negative order incapable of stay. After considering written submissions, the court framed a single issue: whether stay should issue. It found no undue delay, but held the applicants had not demonstrated substantial loss because the respondent's action did not touch the plot they occupy, and that the order of 9th April 2019 was a negative order incapable of execution and hence of stay. Arguability of the appeal was held to be a matter for the appellate court. The application was dismissed with costs to the respondent on 23rd January 2020 at Mombasa.

Key legal issues

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01

Whether the application for stay of execution met the conditions in Order 42 Rule 6(2) of the Civil Procedure Rules

Holding

The application failed: no substantial loss was demonstrated since the respondent's demolition notice related to Plot No.4182/VI/MN, not the plot the applicants occupy, and the order sought to be stayed was a negative order incapable of stay.

Reasoning

The court applied the twin tests of substantial loss and absence of undue delay, plus security, under Order 42 Rule 6. It found no delay, but the applicants could not show how they would suffer substantial loss when the respondent's action targeted a different plot. Further, stay preserves the subject matter so an appeal is not rendered nugatory; here the intended appeal would not be rendered nugatory because the underlying order merely dismissed an injunction application and created no positive obligations capable of execution.

p. 2

Legal principles established

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  • A dismissal of an application for injunction is a negative order incapable of execution and therefore incapable of being stayed
  • The arguability or otherwise of an intended appeal is not a matter for consideration by the court from which the appeal is preferred

Court orders

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  1. 1.The Notice of Motion dated 23rd April 2019 is dismissed
  2. 2.Costs of the application to the respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1) & (2)
  • Civil Procedure ActSection 3A

Cases cited (8)

  • Kinyanjui Muguta v Wotuku Muguta
    (2018) eKLR
  • Butt v Rent Restriction Tribunal
    (197() eKLR
  • JMM v PM
    (2018) eKLR
  • Catherine Njeri Maranga v Sarah Chege & Another
    (2017) eKLR
  • Feisal Amin Janmohamed t/a Dunyia Forwarders v Shami Trading Co. Ltd
    (2014) eKLR
  • Co-operative Bank of Kenya Limited v Banking Insurance & Finance Union (Kenya)
    (2015) eKLR
  • Raymond O. Omboga v Austine Pyan Maranga
  • Peter Ondande t/a Spreawett Chemis v Josephin Wangari Karanja
    (2006) eKLR
Jurisdiction invoked
Order 42 Rule 6(1) & (2) of the Civil Procedure Rules and Section 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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Later judgments citing this (2)

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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, "Ishmael Mangi Katana & 57 others v Kenya Pipeline Company Ltd [2020] KEELC 3384 (KLR)", Case Analysis (2020). Notice of Motion dated 23rd April 2019 (in a suit concerning Plot No.3794/VI/MN and Plot No. MN/VI/4182 Mbuyuni). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3384/eng@2020-01-23

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