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ELCDismissedMachakos CMCC No. 110 of 2018 (Application dated 19th June, 2020)· [2021] KEELC 4175 (KLR)

Henry Munyao Kilonzo v Amy Muasya & 2 others [2021] KEELC 4175 (KLR)

Environment and Land Court
26 February 2021
OAO. A. Angote
1,514 words in judgment
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The bottom line

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Kenya's Environment and Land Court ruled you cannot get a stay of execution of a judgment that dismissed your claim, because a dismissal orders nothing against you.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Machakos (O.A. Angote, J) determines a Notice of Motion dated 19th June 2020 in which the Applicant, Henry Munyao Kilonzo, sought a stay of execution of the judgment of the lower court delivered on 27th May 2020 in Machakos CMCC No. 110 of 2018, pending an intended appeal. The Applicant had sued the Respondents seeking a declaration of legal and equitable interest in land known as Machakos Town Block 3/480. The lower court dismissed his claim but directed the 2nd Respondent to refund him the purchase price of Kshs. 2,000,000. The Applicant argued he had an arguable appeal concerning fraudulent registration, had conducted extensive developments on the land, and would suffer irreparable harm not compensable by damages. The 1st Respondent, the registered owner, opposed, contending that the dismissal of the suit was a negative order incapable of execution and that the stay conditions under Order 42 Rule 6(2) had not been met. The court framed a single issue: whether stay of the lower court's judgment should issue. Applying Order 42 Rule 6(2) and the Court of Appeal's decision in Co-operative Bank of Kenya Ltd v Banking Insurance & Finance Union (Kantai JA), which draws on Mugenyi & Co. Advocates v National Insurance Corporation, the court held that stay presupposes a positive order imposing obligations on the applicant. Since the Applicant's claim was dismissed and no positive obligation was imposed on him, the stay would serve no purpose. The application was dismissed with costs on 26th February 2021.

Key legal issues

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01

Whether stay of execution pending appeal should issue

Holding

Stay refused because the dismissal of the Applicant's suit was a negative order incapable of execution; only the 2nd Respondent was ordered to refund the purchase price.

Reasoning

The court applied Order 42 Rule 6(2) of the Civil Procedure Rules, which requires substantial loss, absence of unreasonable delay and security. Relying on Co-operative Bank of Kenya Ltd v Banking Insurance & Finance Union (Kantai JA), it held that stay presupposes a positive order to be delayed. Since the lower court dismissed the Plaintiff's claim and imposed no positive obligation on him, a stay would serve no purpose.

p. 3

Legal principles established

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  • A stay of execution cannot issue where the judgment sought to be stayed contains no positive order or obligation against the applicant.

Court orders

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  1. 1.Dismissal of the Notice of Motion dated 19th June, 2020 with costs to the 1st Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)
  • Constitution of Kenya, 2010Article 40
  • Land Registration ActSection 24

Cases cited (3)

  • Jaber Mohsen Ali & another vs. Priscillah Boit & another
    [2014]
  • Co-operative Bank of Kenya Limited vs. Banking Insurance & Finance Union (Kenya)
    [2015] eKLR
  • Mugenyi & Co. Advocates v National Insurance Corporation
    Civil Appeal No. 13 of 1984
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, on an application for stay of execution pending appeal

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, "Henry Munyao Kilonzo v Amy Muasya & 2 others [2021] KEELC 4175 (KLR)", Case Analysis (2021). Machakos CMCC No. 110 of 2018 (Application dated 19th June, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2021/4175/eng@2021-02-26

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