Catherine Nasimiyu Khisa & another v Jacob Wangila Wanyama & another [2020] KEELC 3824 (KLR)
The bottom line
#Kenya's Environment and Land Court blocked construction of a disputed storey building during an appeal, but ruled you cannot 'stay' a mere dismissal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the trial court's dismissal of the injunction application, being a negative order, is capable of being stayed (prayer No 5)
- 2.Whether the applicants have met the threshold for the grant of a temporary injunction pending the hearing and determination of the appeal (prayer No 3)
Key legal issues
#Whether a temporary injunction may issue pending appeal
Yes. Order 42 Rule 6(6) confers jurisdiction, and the applicants satisfied the Giella principles and the injunction-pending-appeal principles in Patricia Njeri v National Museum: the appeal is arguable, and refusal would render it nugatory because completion of the storey building would cause irreparable injury that cannot be undone.
The court first confirmed jurisdiction under Order 42 Rule 6(6). It then applied Giella v Cassman Brown and the Patricia Njeri conditions. The trial court itself had found a prima facie case; the adjacent-parcels dispute meant construction on the disputed portion, if continued, would render a successful appeal nugatory. The alleged bank loan financing was unproven and a lesser hardship than demolishing a completed storey building.
Whether the trial court's dismissal of the injunction application could be stayed
No. The ruling dismissed an application only; it was a negative order incapable of execution except for costs.
The trial magistrate had merely dismissed the interlocutory injunction application and directed no party to do or refrain from anything. Following Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah and related authorities, a negative order cannot be stayed. Prayer No 5 was therefore dismissed.
Legal principles established
#- A negative order (mere dismissal of an application) cannot be stayed as it is incapable of execution except as to costs.
- Under Order 42 Rule 6(6), the High Court (ELC) in the exercise of its appellate jurisdiction may grant a temporary injunction pending appeal.
- The purpose of an injunction pending appeal is to preserve the status quo and prevent the appeal from being rendered nugatory.
- Where an appeal involves immovable property under development, refusal of injunctive relief may render a successful appeal nugatory since construction is difficult to reverse.
Court orders
#- 1.Prayer No 5 (stay of execution of the trial court's ruling) is dismissed
- 2.Pending the hearing and determination of the appeal, an order of injunction is issued restraining the Respondents, their contractors, agents and employees from proceeding with the on-going construction of the storey building on land reference NO E. BUKUSU/S. KANDUYI/6033 or any disputed portion thereof until the appeal is heard and finally determined
- 3.The record of appeal be filed within 30 days of the ruling
- 4.Costs shall be in the appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Chief Magistrate's Court, Bungoma (ELC)
- ELC Case No 99 of 2019
- Jurisdiction invoked
- Order 42 Rule 6(6) of the Civil Procedure Rules – appellate jurisdiction to grant temporary injunction pending appeal
Relief refused
#Stay of execution of the trial court's ruling dismissing the injunction application (prayer No 5)
The order sought to be stayed was a negative order dismissing an application; it ordered no party to do anything and is incapable of execution save for costs.
Costs
Costs shall be in the appeal.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Pending the hearing and determination of the appeal herein, an order of injunction is issued restraining the Respondents, their contractors, agents and employees from proceeding with the on – going construction of the storey building on the suit property known as land reference NO E. BUKUSU/S. KANDUYI/6033 or any disputed portion thereof until this appeal is heard and finally determined.
Prayer No 5 is dismissed.
The trial Court therefore only issued a negative order which is incapable of execution save only for purposes of costs. Such an order is incapable of execution and cannot therefore be stayed.
the purpose of granting an injunction pending appeal is to preserve the status quo and to prevent the appeal, if successful, from being rendered nugatory.
The record of appeal be filed within 30 days of this ruling.
Issues in the judgment
#The judgment gives conflicting dates for the impugned trial court ruling – canvassed by Hon. E. N. Mwenda and said to be delivered on 2nd December 2019, yet elsewhere referred to as delivered on 8th November 2019.
The judgment inconsistently records the trial magistrate's rank as SRM and CM/Chief Magistrate.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Catherine Nasimiyu Khisa & another v Jacob Wangila Wanyama & another [2020] KEELC 3824 (KLR)", Case Analysis (2020). ELC Appeal (Bungoma) – Notice of Motion dated 3rd December 2019 arising from Bungoma Chief Magistrate's Court ELC Case No 99 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3824/eng@2020-01-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.