Kimani Kabogo v William Kabogo Gitau [2021] KEELC 679 (KLR)
The bottom line
#Kenya's Environment and Land Court refused to stay a ruling striking out a suit, confirming that negative orders cannot be stayed and unexplained delay kills such applications.
What this practically means
#Executive summary
#Key legal issues
#Whether the ruling of 10/12/2018 striking out the suit was a negative order capable of being stayed
The order striking out the suit was a negative order incapable of execution and therefore incapable of being stayed
The Court held that where an order merely dismisses a suit without requiring any party to do or refrain from doing anything, it is a negative order incapable of execution save in respect of costs. Following Court of Appeal authority, the Court found no positive order capable of being stayed.
Whether the Court had jurisdiction to grant the stay sought
Having held in the 10/12/2018 ruling that it lacked jurisdiction, the Court could not now issue orders in the matter; the recourse against that ruling is appeal
The Court reasoned that it cannot arrogate to itself jurisdiction exceeding that conferred by law, and a court of concurrent jurisdiction cannot re-open a case it has struck out. Doing so would amount to sitting on its own appeal.
Whether the applicant met the conditions for stay of execution under Order 42 Rule 6(2)
The applicant failed to demonstrate substantial loss, gave no explanation for the three-year delay, and offered no security
The Court found that the applicant did not explain what substantial loss he would suffer, the application was brought about three years after the ruling with no explanation offered, and no security for due performance of the decree was given. The prayer for stay of taxation was also overtaken by events as the bill had already been taxed.
Legal principles established
#- A negative order, such as an order striking out a suit, is incapable of execution and incapable of being stayed save in respect of costs
- A court that has held it lacks jurisdiction cannot issue orders in a matter, as jurisdiction goes to the heart of a dispute and without it the court must down its tools
- An applicant for stay of execution must demonstrate substantial loss, explain any delay, and offer security for the due performance of the decree
Court orders
#- 1.The application is dismissed with costs payable by the Applicant
- 2.It is so ordered
- Jurisdiction invoked
- Civil Procedure Act (Sections 1A, 1B, 2) and Order 42 Rule 6 of the Civil Procedure Rules, 2010; matter arising from an application for stay of execution and stay of proceedings pending Civil Appeal No. 82 of 2019
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kimani Kabogo v William Kabogo Gitau [2021] KEELC 679 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/679/eng@2021-11-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.