Joseph Rajula Lunani v Donald Oyatsi [2021] KEELC 1603 (KLR)
The bottom line
#A Kenyan High Court allowed a landowner to pause execution of a decree ordering him off his land, provided he deposits Kshs. 253,235 as security within 90 days.
What this practically means
#Executive summary
#Key legal issues
#Whether the decree is a negative order incapable of stay
The decree is a positive order capable of execution because the Respondent's counterclaim was allowed with orders for possession, nullification of title, mandatory injunctions and an injunction.
The court applied the Court of Appeal principle in the Sonalux line of authorities that a negative order, where no party is ordered to do or pay anything, cannot be stayed. It examined the counterclaim orders in the trial judgment: possession of Marachi/Elukhari/2611, declaration of nullity of title, mandatory injunctions against the Land Registrar and the Applicant, and an injunction restraining occupation. Since these require affirmative action, the decree is enforceable and stay is competent.
Whether late service of the Notice and Memorandum of Appeal bars the stay
This court lacks jurisdiction to refuse stay on the ground of late service; that objection lies before the Court of Appeal.
The Respondent argued that failure to serve the Notice of Appeal within seven days rendered the appeal incompetent. The court held that the power to strike out an appeal for such incompetence vests in the court where the appeal is pending, namely the Court of Appeal, and the trial court cannot determine that question collaterally in a stay application.
Whether substantial loss, delay and security under Order 42 Rule 6(2) were satisfied
Substantial loss was established through the risk of loss of home and farming investment and the cumbersome reversal of cancelled title; the application was made without unreasonable delay; and the court fixed the taxed costs as security.
The court accepted that loss of home carries sentimental and economic loss, and that cancellation of the Applicant's title would make restoration cumbersome if the appeal succeeded, following Peter Maina Maingi v Lucy Kagure Wanjohi. Although the Applicant offered no formal security, the court exercised its discretion to order the taxed costs of Kshs.253,235/- be deposited as security, relying on Focin Motorcycle Co. Ltd v Ann Wambui Wangui.
Legal principles established
#- An order is only negative, and incapable of stay, where no party is ordered to do or abstain from doing anything; orders flowing from an allowed counterclaim (possession, cancellation of title, mandatory injunctions) are positive orders capable of execution and therefore stayable.
- Jurisdiction to strike out a Notice of Appeal, Memorandum of Appeal or Record of Appeal for late service lies with the appellate court, not the trial court, and cannot be raised to defeat an application for stay.
- The court may in its discretion determine the form of security for stay; it is sufficient that the applicant offers security and the court fixes it.
Court orders
#- 1.Stay of execution of the decree pending appeal is granted
- 2.The Applicant shall deposit the amount of taxed costs of Kshs.253,235/- into an account opened in the joint names of the advocates on record or into Court within 90 days from the date of the ruling, to be held pending hearing and determination of the appeal
- 3.In default of the deposit, execution on costs shall proceed and amounts realized shall be deposited into the Court account
- 4.The costs of the application to abide the winner in the appeal
- Jurisdiction invoked
- Sections 1A, 1B, 3 and 3A of the Civil Procedure Act; Order 42 Rule 6 and Order 51 of the Civil Procedure Rules, 2010; Article 159 of the Constitution; High Court Vacation Rules section 3(2)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Rajula Lunani v Donald Oyatsi [2021] KEELC 1603 (KLR)", Case Analysis (2021). Court of Appeal Civil Appeal No. 12 of 2021 (Busia High Court application dated 30/3/2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/1603/eng@2021-10-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.