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ELCStruck OutPetition filed 26th June 2013 (Notice of Motion dated 29th September 2021; Preliminary Objection dated 29th September 2021)· [2021] KEELC 1366 (KLR)

Mikulo Ranching (Directed Agricultural) Co Ltd v Kenya Wildlife Service & 3 others [2021] KEELC 1366 (KLR)

Environment and Land Court
27 October 2021
1,966 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court struck out a stay application because a dismissal judgment is a 'negative order' that cannot be stayed.

What this practically means

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Executive summary

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The Petitioner filed a Notice of Motion dated 29th September 2021 seeking a stay of execution of the judgment of 13th September 2021, by which its Petition (filed on 26th June 2013 seeking declarations, an order of review/quashing of decisions permitting construction of an electric fence blocking access roads, and a permanent injunction) was dismissed with costs to the Respondents. The Petitioner said it sought the stay pending the hearing of the application and an intended appeal to the Court of Appeal, contending that the Respondents had issued a notice of road closure so the judgment was not a negative order. The 4th Respondent raised a Preliminary Objection, arguing the application was incompetent, misconceived and an abuse of process because a negative order is incapable of execution except as to costs, and because the application was brought under the Civil Procedure Rules rather than the Mutunga Rules, outside the 14-day window. The 2nd Respondent supported the objection. The court restated the law on preliminary objections (Mukisa Biscuits, Oraro v Mbaja), held that the order sought to be stayed was a negative order incapable of being stayed, with the only executable element being costs. It also held that failure to cite the correct provisions of law - the Mutunga Rules rather than the Civil Procedure Rules - did not by itself defeat the application, applying Article 159(2)(d) and (e) and the Kitty Njiru and Nicholas Hendrick Classen authorities. Upholding the preliminary objection on the substantive ground, the court struck out the Notice of Motion with costs to the Respondents on 27th October 2021, the ruling being delivered virtually at Makueni.

Key legal issues

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01

Whether a negative order can be stayed

Holding

A negative order cannot be stayed; only execution in respect of costs can flow from an order dismissing a suit.

Reasoning

The court noted that the order sought to be stayed was the dismissal of the Petition, which ordered no party to do, refrain from doing, or pay anything. Following Western College and Kaushik Panchamatia, the court held that a negative order is incapable of execution except in respect of costs, and therefore there is nothing to stay.

p. 3
02

Whether citing Civil Procedure Rules instead of the Mutunga Rules in a constitutional petition is fatal

Holding

Failure to cite the correct provisions cannot by itself defeat an application; substantive justice prevails over procedural technicalities.

Reasoning

The applicant had cited Civil Procedure Act and Rules provisions but none of the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013. Relying on Article 159(2)(d) and (e) and Kitty Njiru and Nicholas Hendrick Classen, the court held the wrong citation was not fatal, though the application was struck out on the substantive ground that a negative order cannot be stayed.

p. 3
03

What constitutes a proper preliminary objection

Holding

A preliminary objection must be on a pure point of law, not blurred with contested factual details.

Reasoning

The court restated the classic position from Mukisa Biscuits and Oraro v Mbaja that a preliminary objection consists of points of law which, if argued as a preliminary point, may dispose of the suit, and cannot be raised if facts must be ascertained or judicial discretion exercised.

p. 2

Legal principles established

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  • A negative order is incapable of being stayed because there is nothing to stay; the only execution flowing from a dismissal with costs is in respect of costs.

Court orders

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  1. 1.The preliminary objection that the application is incompetent and an abuse of the court process is upheld
  2. 2.The Notice of Motion dated 29th September, 2021 is struck out with costs to the Respondents

Authorities

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Legislation

  • Constitution of KenyaArticle 22; Article 40; Article 47(1); Article 159(d) and (e); Article 259(1)
  • Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules 2013Rule 3(3)
  • Civil Procedure ActSections 1A, 1B
  • Civil Procedure RulesOrder 42 rule 6; Order 51 Rule 1; Order 40 Rule 3(1)
  • High Court Organization and Administration Act No. 27 of 2015Section 36(1)
  • Judicature ActSection 5

Cases cited (10)

  • Mukisa Biscuits Manufacturing Company Ltd Vs West End Distributors Ltd
    (1969) EA 696
  • Oraro Vs Mbaja
    2005 eKLR
  • Mombasa Seaport Duty Free Ltd v Kenya Ports Authority
    (2006) eklr
  • William Wambugu Wahome v Registrar of Trade unions & Another
    (2006) eklr
  • Obadiah Muruja Mugendi v Charlse Kabiti Japhet & 3 others
    (2020) eklr
  • Micheal Mwangi Guchura v Martin Wambua Kitavi Legal Representative of Kambua Kitavi (Deceased)
    (2021) eklr
  • Western College Farts and Applied Sciences Vs Oranga & Others
    (1976) KLR 63
  • Kaushik Panchamatia & 3 others Vs Prime Bank
  • Kitty Njiru Vs Nature & Style Fun Day Events & Another, Rebecca Muriuki t/a Kahaari (Proposed third Party)
    (2020) Eklr
  • Nicholas Hendrick Classen Vs Commissioner of Lands & 4 Others
    (2016) Eklr
Jurisdiction invoked
Environment and Land Court jurisdiction over the Petition; application brought under Section 36(1) High Court Organization and Administration Act No. 27 of 2015, Section 5 of the Judicature Act, Order 51 Rule 1 and Order 40 Rule 3(1) of the Civil Procedure Rules and Sections 1A, 1B of the Civil Procedure Act

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, "Mikulo Ranching (Directed Agricultural) Co Ltd v Kenya Wildlife Service & 3 others [2021] KEELC 1366 (KLR)", Case Analysis (2021). Petition filed 26th June 2013 (Notice of Motion dated 29th September 2021; Preliminary Objection dated 29th September 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1366/eng@2021-10-27

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