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ELCDismissedNotice of Motion dated 10th February, 2020 (ruling of the trial court's Ruling of 17th December, 2019)· [2021] KEELC 651 (KLR)

John Allan Onchiri Masese v Reuben Kipngetich Mabil & another [2021] KEELC 651 (KLR)

Environment and Land Court
30 November 2021
MKMohammed N. Kullow
1,496 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 ruling that dismissed a land suit, because a dismissal orders no one to do anything and cannot be 'executed'.

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 Migori on a Notice of Motion dated 10th February, 2020 in which the Applicant, John Allan Onchiri Masese, sought a stay of execution of the court's Ruling of 17th December, 2019, pending hearing and determination of an intended appeal. That Ruling had allowed the 1st Defendant's preliminary objection dated 12th June, 2019 and dismissed the Plaintiff's suit as res judicata under section 7 of the Civil Procedure Act. The application, supported by the Applicant's affidavit, was opposed by the 1st Defendant, who described it as defective and an abuse of process and challenged the Applicant's capacity to sue for the registered owner; the 2nd Defendant filed no response. The court framed a single issue: whether a stay of execution could issue against the Ruling of 17th December, 2019. Applying Order 42 Rule 6(2) of the Civil Procedure Rules, 2010, the court held that the three conditions - substantial loss, absence of unreasonable delay and security - must all be satisfied simultaneously. The Applicant failed to demonstrate substantial loss and gave no explanation for the delay between the Ruling and the application. Decisively, the court found the Ruling was a negative order: it ordered no party to do anything, refrain from anything, or pay any sum, and was therefore incapable of execution. Adopting Court of Appeal authority on this point, the court dismissed the application with costs to the Respondent.

Key legal issues

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01

Whether a stay of execution can issue against the Ruling dated 17th December, 2019 dismissing the suit as res judicata

Holding

No. The dismissal of the suit upon allowing a preliminary objection is a negative order incapable of execution, and the applicant also failed to demonstrate substantial loss and absence of unreasonable delay.

Reasoning

Order 42 Rule 6(2) sets three conditions which must coexist. The applicant did not prove substantial loss, gave no explanation for the delay from 17.12.2019 to 10.02.2020, and in any event the ruling ordered no party to do or refrain from doing anything or to pay any sum, so there was nothing to stay.

p. 2

Legal principles established

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  • All three conditions in Order 42 Rule 6 of the Civil Procedure Rules (substantial loss, no unreasonable delay, security) must be satisfied simultaneously before stay of execution can issue
  • A negative order - one that does not require a party to do anything, refrain from doing anything, or pay any sum - is incapable of execution and cannot be stayed

Court orders

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  1. 1.The Application dated 10.02.2020 is dismissed with costs to the Respondent

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(2)
  • Civil Procedure Actsection 7

Cases cited (7)

  • M.O.M Amin Transporters Limited & Another v Alexander Ndung'u Mbugua & 2 Others
    [2017] eKLR
  • Kiplagat Kotut vs Rose Jebor Kipngok
    [2015] eKLR
  • Kenya Commercial Bank Limited vs Sun City Properties Limited & 5 Others
    [2012] eKLR
  • Kenya Shell Limited vs Kibiru
    (Supra)
  • Ndungu Kinyanjui vs Kibichoi Kugeria Services & Another
    [2007] eKLR
  • David Thiong'o T/A Welcome General Stores vs Market Fancy Emporium
    [2007] eKLR; Civil Application No. NAI. 47 OF 2007
  • Milcah Jeruto T/A Milcah Faith Enterprises v Fina Bank Limited & Another
On appeal from
null
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010 (inherent application jurisdiction; trial court's own ruling sought to be stayed)

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, "John Allan Onchiri Masese v Reuben Kipngetich Mabil & another [2021] KEELC 651 (KLR)", Case Analysis (2021). Notice of Motion dated 10th February, 2020 (ruling of the trial court's Ruling of 17th December, 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/651/eng@2021-11-30

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