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ELCDismissedNotice of Motion dated 9th October 2020 (amended Originating Summons dated 19th May 2012)

Joseph Mumero Wanyama v Jared Wanjala Lyani & another [2021] KEELC 2948 (KLR)

Environment and Land Court
10 June 2021
2,995 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~12 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court refused to pause a dismissed land case, confirming you cannot stay a judgment that merely dismisses a suit.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Bungoma (Boaz N. Olao, Judge) determined the plaintiff's Notice of Motion dated 9th October 2020 seeking a stay of execution of the judgment delivered on 27th May 2020, which had dismissed his claim to the suit land, parcel NO NDIVISI/NDIVISI/1640, by adverse possession against Jared Wanjala Lyani and Hesbon Murule Lusweti, and ordered eviction of the 2nd defendant. The plaintiff, having filed a Notice of Appeal on 10th June 2020, argued that the 1st defendant's filing of a Bill of Costs on 8th July 2020 amounted to partial execution and that he would suffer substantial loss if stay was denied. The 1st defendant opposed, contending that following the dismissal of the suit the only execution was for costs, which cannot be stayed, and that the plaintiff offered no security. The court first applied Western College of Arts and Applied Sciences v Oranga, holding that a judgment which merely dismisses a suit is a negative order incapable of execution save for costs, and costs cannot be stayed; the application therefore collapsed. It nonetheless considered the merits under Order 42 Rule 6(1) and (2) of the Civil Procedure Rules, finding the five-month delay unreasonable, substantial loss unproved (submissions not being evidence, per Daniel Toroitich arap Moi v Mwangi Stephen Muriithi), and no security offered. The application was dismissed with costs to the 1st defendant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the judgment dismissing the plaintiff's adverse possession suit is a negative order incapable of execution and thus incapable of being stayed
  2. 2.Whether the plaintiff demonstrated sufficient cause, substantial loss, absence of unreasonable delay and offered security under Order 42 Rule 6(1) and (2) of the Civil Procedure Rules

Key legal issues

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01

Whether the dismissed adverse possession suit produced an executable decree capable of being stayed

Holding

The judgment dismissing the suit was a negative order; only execution for costs was pending, and costs cannot be stayed

Reasoning

Following Western College of Arts and Applied Sciences v Oranga, where the High Court merely dismisses a suit, the only possible execution is in respect of costs. The court noted the plaintiff did not allege the defendants were impecunious, so even an eventual refund of costs was not threatened. The application therefore collapsed at the threshold.

p. 2
02

Whether the application was made without unreasonable delay

Holding

The application filed on 9th October 2020, some five months after the judgment, was unreasonably delayed

Reasoning

The judgment was delivered on 20th May 2020 by email and the plaintiff became aware that day, filing a Notice of Appeal on 10th June 2020. The stay application followed only in October 2020, and notably only after the 1st defendant filed his Bill of Costs, suggesting the purpose was to stall taxation rather than to preserve the appeal.

p. 3
03

Whether the plaintiff proved substantial loss

Holding

The plaintiff failed to prove substantial loss; a bare assertion in the affidavit and argument in submissions did not suffice

Reasoning

The plaintiff merely alluded to the words 'substantial loss' without stating factual particulars. The claim that the 1st defendant might dispose of the suit land was raised only in submissions, which are not evidence. Citing Kenya Shell v Kibiru and Machira v East African Standard, the court held specific, tangible loss must be proved by evidence.

p. 4
04

Whether the plaintiff offered security

Holding

The plaintiff made no offer of security, confirming the application was a delaying tactic

Reasoning

Relying on Halai v Thornton & Turpin and Wycliff Sikuku Walusaka v Philip Kaita Wekesa, the court held the offer of security must come from the applicant as a sign of good faith. Even an offer to deposit part of the taxed costs would have sufficed given that only costs were being executed, but the plaintiff made no offer at all.

p. 4

Legal principles established

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  • A judgment that merely dismisses a suit is a negative order incapable of execution save for costs, and costs cannot be stayed
  • The four conditions for granting stay of execution pending appeal are: sufficient cause, substantial loss, no unreasonable delay, and offer of security
  • Submissions cannot take the place of evidence

Court orders

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  1. 1.The plaintiff's Notice of Motion dated 9th October 2020 is dismissed
  2. 2.Costs of the application to the 1st defendant

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority

Wrote the judgment

Jurisdiction invoked
Order 42 Rule 6(1) and (2) of the Civil Procedure Rules

Relief refused

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Order of stay of execution of the judgment delivered on 27th May 2020 pending the plaintiff's intended appeal to the Court of Appeal

The judgment was a negative order incapable of execution save for costs; further, the applicant failed to show substantial loss, filed the application after inordinate delay, and offered no security

p. 4

Costs

Dismissed with costs to the 1st defendant

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The up – shot of the above is that the plaintiff’s Notice of Motion dated 9 th October 2020 is devoid of merit. It is dismissed with costs to the 1st defendant.
p. 4Disposition
there is no sufficient cause shown to warrant the orders sought and primarily because, this Court’s Judgment and the subsequent decree was a negative order that cannot be stayed
p. 4Negative orders cannot be stayed
Submissions cannot take the place of evidence.
p. 4Submissions are not evidence
Substantial loss in it’s various forms is the cornerstone of both jurisdictions for granting stay.
p. 3Substantial loss
The offer of security must of course come from the Applicant himself as a sign of good faith to demonstrate that the application for stay of execution pending appeal is being pursued in the interest of justice and not merely as a decoy
p. 4Security for due performance

Issues in the judgment

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minor

The judgment gives conflicting delivery dates for the dismissed judgment - 27th May 2020 in the main narrative but 20th May 2020 when discussing delay

minor

Counsel for the plaintiff is inconsistently named: referred to as a female counsel (MS ANNET MUMALASI) and a male counsel (MS BRYAN KHAEMBA KAMAU) as if they were the same firm/person

minor

The plaintiff's submissions are quoted as referring to a judgment issued on 27th March 2020, while the judgment is elsewhere dated 27th May 2020

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, "Joseph Mumero Wanyama v Jared Wanjala Lyani & another [2021] KEELC 2948 (KLR)", Case Analysis (2021). Notice of Motion dated 9th October 2020 (amended Originating Summons dated 19th May 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/2948/eng@2021-06-10

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