Mikulo Ranching (Directed Agricultural) Co Ltd v Kenya Wildlife Service & 3 others [2021] KEELC 1366 (KLR)
The bottom line
#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
#Executive summary
#Key legal issues
#Whether a negative order can be stayed
A negative order cannot be stayed; only execution in respect of costs can flow from an order dismissing a suit.
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.
Whether citing Civil Procedure Rules instead of the Mutunga Rules in a constitutional petition is fatal
Failure to cite the correct provisions cannot by itself defeat an application; substantive justice prevails over procedural technicalities.
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.
What constitutes a proper preliminary objection
A preliminary objection must be on a pure point of law, not blurred with contested factual details.
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.
Legal principles established
#- 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
#- 1.The preliminary objection that the application is incompetent and an abuse of the court process is upheld
- 2.The Notice of Motion dated 29th September, 2021 is struck out with costs to the Respondents
- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.