Joseph Mumero Wanyama v Jared Wanjala Lyani & another [2021] KEELC 2948 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.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
#Whether the dismissed adverse possession suit produced an executable decree capable of being stayed
The judgment dismissing the suit was a negative order; only execution for costs was pending, and costs cannot be stayed
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.
Whether the application was made without unreasonable delay
The application filed on 9th October 2020, some five months after the judgment, was unreasonably delayed
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.
Whether the plaintiff proved substantial loss
The plaintiff failed to prove substantial loss; a bare assertion in the affidavit and argument in submissions did not suffice
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.
Whether the plaintiff offered security
The plaintiff made no offer of security, confirming the application was a delaying tactic
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.
Legal principles established
#- 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
#- 1.The plaintiff's Notice of Motion dated 9th October 2020 is dismissed
- 2.Costs of the application to the 1st defendant
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 42 Rule 6(1) and (2) of the Civil Procedure Rules
Relief refused
#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
Costs
Dismissed with costs to the 1st defendant
Quotable passages
#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.
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
Submissions cannot take the place of evidence.
Substantial loss in it’s various forms is the cornerstone of both jurisdictions for granting stay.
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
Issues in the judgment
#The judgment gives conflicting delivery dates for the dismissed judgment - 27th May 2020 in the main narrative but 20th May 2020 when discussing delay
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
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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.