Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment (Notice of Motion dated 2nd December 2020)· [2021] KEELC 3844 (KLR)

Loise Mabuti v Nancy Wambui & another [2021] KEELC 3844 (KLR)

Environment and Land Court
19 March 2021
ECE.C. Cherono
1,118 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

The Environment and Land Court dismissed a bid to pause execution of its ruling because a suit dismissal is a negative order that nothing needs to be stayed.

What this practically means

#

Executive summary

#
The plaintiff/applicant moved the Environment and Land Court at Kerugoya by Notice of Motion dated 2nd December 2020 seeking, principally, a stay of execution of the judgment delivered on 23rd October 2020 dismissing her suit with costs, pending an intended appeal to the Court of Appeal at Nyeri, and further leave for the firm of Wanjiru Waweru & Co. Advocates to come on record in place of Ikahu Nganga & Co. Advocates. The 2nd respondent, Hesbon Kiambati, opposed the application through a replying affidavit sworn on 7th December 2020, contending that the application was defective and that there were no orders capable of being stayed since the judgment was a mere dismissal, and that the applicant's fears of eviction were misplaced as she occupied a different land parcel. E.C. Cherono J held, applying the Court of Appeal decisions in Western College of Arts and Applied Sciences v Oranga and Republic v Kenya Wildlife Services, that an order of dismissal is a negative order incapable of execution except for costs, and that since the judgment of 23rd October 2020 directed no party to do or refrain from doing anything, there was no positive and enforceable order capable of being stayed. It was therefore unnecessary to consider the Order 42 Rule 6 thresholds of substantial loss, delay and security. The court also found the change of advocates incompetent for lack of service on, and consent from, the previous firm. The Notice of Motion was dismissed with costs to the respondent on 19th March 2021.

Key legal issues

#
01

Whether stay of execution pending appeal can be granted where the judgment dismissed the suit

Holding

No; a dismissal is a negative order incapable of execution except for costs, so there is nothing to stay

Reasoning

Relying on Western College of Arts and Applied Sciences v Oranga and Republic v Kenya Wildlife Services, the court held that where the judgment merely dismisses a suit, no party is ordered to do or refrain from doing anything, and only costs are executable. Without a positive enforceable order, an application for stay pending appeal is incompetent and it is unnecessary to consider the Order 42 Rule 6 thresholds.

p. 2
02

Whether the incoming firm of advocates could come on record without the previous firm's consent

Holding

No; the rules of practice require service on and consent of the previous advocates

Reasoning

The court found that the application to have Wanjiru Waweru & Co. Advocates come on record in place of Ikahu Nganga & Co. Advocates was defective because the previous firm was neither served nor did it file a consent indicating no objection to the change of representation.

p. 2

Legal principles established

#
  • An order of dismissal of a suit is a negative order incapable of execution except in respect of costs, and no stay of execution can lie in respect of it.
  • A new advocate may only come on record in place of a previous firm upon service on, and consent or lack of objection from, the previous firm.

Court orders

#
  1. 1.The Notice of Motion dated 2nd December 2020 is dismissed
  2. 2.Costs of the application to the respondent

Authorities

#

Legislation

  • Civil Procedure RulesOrder 42 Rule 6

Cases cited (2)

  • Western College Farts and Applied Sciences Vs Oranga & Others
    (1976) K.L.R 63
  • Republic Vs Kenya Wildlife Services & 2 Others
    (C.A. No. 12 of 2007 (Nairobi) (U.R)
On appeal from
Not applicable - this is an application arising from this Court's own judgment
Not stated
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Loise Mabuti v Nancy Wambui & another [2021] KEELC 3844 (KLR)", Case Analysis (2021). Not stated in judgment (Notice of Motion dated 2nd December 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/3844/eng@2021-03-19

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