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ELCDismissedNotice of Motion dated 23/6/2020 (main petition judgment delivered 29/5/2020)· [2020] KEELC 3962 (KLR)

Christopher Kurutyon Lonyala & 26 others v Cabinet Secretary Ministry of Lands and Settlement & 10 others; Ekitale Ekal Lodio & 11 others (Interested parties) [2020] KEELC 3962 (KLR)

Environment and Land Court
25 September 2020
MNMwangi Njoroge
2,385 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to stay a judgment that merely dismissed a petition, ruling that negative orders cannot be stayed or executed.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kitale (Mwangi Njoroge J) determined a Notice of Motion dated 23/6/2020 by the interested parties in a concluded petition concerning the Chepchoina Settlement Scheme. Relying on sections 3, 3A and 63(e) of the Civil Procedure Act and Order 22 Rule 51 of the Civil Procedure Rules, the applicants sought a stay of execution of the court's judgment of 29/5/2020, contending that settlers risked eviction pending an intended appeal to the Court of Appeal, and sought enforcement by the OCS Endebess. The respondents opposed: the 11th respondent swore there were no orders capable of being stayed since the petition was dismissed for lack of merit, while the 1st–9th respondents filed grounds of opposition alleging defectiveness, lack of jurisdiction, and abuse of process. The court framed two issues: whether stay should issue and costs. Applying Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah and Shade Manufacturers v Serah Mweru Mutuu, it held the judgment was a negative order incapable of execution or stay. Even if the Order 42 rule 6(2) criteria were in principle available, they must be met conjunctively; although a notice of appeal existed and the application was filed without inordinate delay, the applicants, as interested parties who had never pleaded their own case, failed to demonstrate substantial loss. The application was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether stay of execution can issue of a judgment that merely dismissed the petition

Holding

No stay can issue because the judgment was a negative order incapable of execution.

Reasoning

The court found that the judgment of 29/5/2020 simply dismissed the petition without compelling or restraining any party from doing anything. Following Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah and Shade Manufacturers v Serah Mweru Mutuu, negative orders are incapable of execution save for costs and therefore incapable of stay. Any injunction should have been sought in a properly vested court.

p. 4
02

Whether the Order 42 rule 6(2) conditions for stay were met

Holding

They were not; the conditions are conjunctive and the applicants failed on substantial loss.

Reasoning

Although a notice of appeal existed and the application was filed within a month of judgment (not inordinate delay), the supporting affidavit was bare of evidence of loss, and the applicants were interested parties who never formulated their own case. Since the criteria must be satisfied conjunctively, failure of the substantial-loss condition alone warranted dismissal.

p. 5

Legal principles established

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  • A negative order (a dismissal without positive relief) is incapable of execution and therefore incapable of being stayed.
  • The conditions for stay under Order 42 Rule 6(2) must be construed conjunctively, not disjunctively; failure of any one condition is fatal to the application.

Court orders

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  1. 1.The application dated 23/6/2020 is dismissed
  2. 2.Each party shall bear their own costs of the application

Authorities

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Legislation

  • Civil Procedure ActSections 3, 3A and 63(e)
  • Civil Procedure Rules, 2010Order 22 Rule 51
  • Civil Procedure Rules, 2010Order 42 Rule 6

Cases cited (8)

  • Abdulrahman C. Kirao & 3 Others v Said Seif & 3 Others
    [2019] eKLR
  • Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah
    [2008] eKLR
  • Western College of Arts & Applied Sciences v Oranga & Others
    [1976] KLR 63
  • Shade Manufacturers and Hotel Limited v Serah Mweru Mutuu & 3 others
    [2018] eKLR
  • Raymond M. Omboga v Austine Pyan Maranga
    Kisii HCCA No 15 of 2010
  • Dismas Ombongi T/A Kamili Dog Farm v Inter Security Services Limited
    [2018] eKLR
  • Charles Mithika v Joseph Mureithi & Equity Bank Limited
    [2019] eKLR
  • Zahir Habib Jiwan & another v Jubilee Insurance Company of Kenya Ltd
    [2015] eKLR
Jurisdiction invoked
Sections 3, 3A and 63(e) of the Civil Procedure Act and Order 22 Rule 51 of the Civil Procedure Rules, 2010

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, "Christopher Kurutyon Lonyala & 26 others v Cabinet Secretary Ministry of Lands and Settlement & 10 others; Ekitale Ekal Lodio & 11 others (Interested parties) [2020] KEELC 3962 (KLR)", Case Analysis (2020). Notice of Motion dated 23/6/2020 (main petition judgment delivered 29/5/2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/3962/eng@2020-09-25

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