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ELCDismissed· [2021] KEELC 2921 (KLR)

Grace Ruguru Mwangi v Mary Wangari Maina & 2 others [2021] KEELC 2921 (KLR)

High Court of Kenya
10 June 2021
JKJ.G. Kemei
1,183 words in judgment
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The bottom line

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Kenya's High Court confirmed you cannot stay a dismissal that orders nobody to do anything — only positive orders can be stayed.

What this practically means

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Executive summary

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This was a Notice of Motion dated 4 February 2021 by Grace Ruguru Mwangi, the Appellant, brought under Order 42 Rule 6 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking a stay of execution of a ruling delivered on 14 January 2021 pending the hearing and determination of an appeal. The impugned ruling had dismissed her appeal against a trial court decision of 29 September 2017 in Kigumo SPMCC No. 73 of 2015, which allowed the Plaintiff to withdraw the suit; the Applicant had been an interested party. The 1st and 3rd Respondents opposed the application, the 3rd Respondent contending that the ruling issued a negative order incapable of being stayed. Only the 3rd Respondent filed written submissions, relying on authority to the effect that negative orders cannot be executed or stayed. The Court held that Order 42 Rule 6(2) is mandatory and requires an Applicant first to demonstrate substantial loss. Since the ruling of 14 January 2021 merely dismissed the appeal with costs and did not order any party to do anything, refrain from anything, or pay any sum, there was nothing capable of execution and no substantial loss was demonstrated; the Applicant's substantive claim lay in Murang'a ELC No. 167 of 2017. The other two limbs of the test were rendered moot. The application was dismissed with costs to the 1st and 3rd Respondents.

Key legal issues

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01

Whether an order dismissing an appeal (a negative order) can be stayed under Order 42 Rule 6

Holding

No - a negative order cannot be stayed as there is nothing capable of execution

Reasoning

The Court reasoned that under Order 42 Rule 6(2), the Applicant must first demonstrate substantial loss. Where the impugned ruling merely dismissed the appeal without ordering any party to do anything, pay any sum, or refrain from doing anything, there is no decree or order capable of execution and thus no substantial loss can arise. The Applicant's recourse lies elsewhere, in Murang'a ELC 167 of 2017.

p. 2
02

Whether the Applicant demonstrated substantial loss

Holding

No substantial loss was shown since no party was ordered to do anything to the disadvantage of the other

Reasoning

Subsection (2) of Order 42 Rule 6 is mandatory: an Applicant must show substantial loss, that the application was made without unreasonable delay, and furnish security. Having failed on the first limb, the remaining limbs became moot and the application fell away.

p. 2

Legal principles established

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  • A negative order, which does not require any party to do anything or refrain from doing anything, is incapable of being stayed or executed

Court orders

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  1. 1.The Notice of Motion dated 4/2/2021 seeking stay of execution is dismissed
  2. 2.Costs of the application awarded to the 1st and 3rd Respondents

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)
  • Civil Procedure ActSections 1A, 1B, 3A and 2

Cases cited (5)

  • Kellen Karimi Ndambiri & Anor. V Attorney General & 2 Others
    [2017] eKLR
  • Kanwal Sarjit Singh Dhiman vs Keshavji Jiuraj Shah
    (2008) eKLR
  • Kaushik Panchmatia & 3 Others v Prime Bank Limited
    [2020] eKLR
  • Julius Mugo Muchiri v Njiru K Njagi & another
    [2021] eKLR
  • Western College Farts and Applied Sciences vs. Oranga & Others
    [1976] KLR 63
On appeal from
High Court (ruling delivered 14/01/2021 in an appeal from Kigumo SPMCC No. 73 of 2015)
Not stated
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules and Sections 1A, 1B & 3A 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, "Grace Ruguru Mwangi v Mary Wangari Maina & 2 others [2021] KEELC 2921 (KLR)", Case Analysis (2021). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2921/eng@2021-06-10

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