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ELCDismissedNot stated in the judgment· [2022] KEELC 240 (KLR)

Justus Munuve Kilonzo v Joseph Mung’utu Munuvi [2022] KEELC 240 (KLR)

Environment and Land Court
27 April 2022
TMT. Murigi
1,978 words in judgment
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The bottom line

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A Kenyan court dismissed a bid to pause a judgment, ruling that a dismissal of a land suit is a 'negative order' that cannot be stayed.

What this practically means

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Executive summary

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This ruling by Hon. T. Murigi, Judge, disposed of a Notice of Motion dated 15th July 2021 in which the Plaintiff/Applicant sought stay of execution of a judgment of 28th May 2021, together with restraining orders preserving his possession of land parcel Nzaui/Kalamba/551, pending a planned appeal to the Court of Appeal. The Applicant's Originating Summons, filed in 2005, had sought declarations of adverse possession over approximately 0.75 hectares and ancillary orders; the trial court dismissed the suit with costs on 28th May 2021, finding the Plaintiff had not proved his cause of action on a balance of probabilities. The Applicant contended he faced imminent eviction and that his appeal would be rendered nugatory; the Respondent countered that he had already taken possession, that the application was overtaken by events, and that no appeal had been filed. The court framed a single issue: whether the Applicant was entitled to the orders sought. Relying on Order 42 Rule 6 of the Civil Procedure Rules and the authorities of Western College Arts and Applied Sciences v Oranga, Kaushik Panchamatia v Prime Bank and Oliver Collins Wanyama v Engineers Board of Kenya, the court held that a judgment dismissing a suit is a negative order incapable of being stayed, since the only execution flowing from it is costs. The application was accordingly dismissed with costs to the Respondent.

Key legal issues

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01

Whether stay of execution pending appeal can issue in respect of a judgment dismissing an Originating Summons with costs

Holding

No – such a judgment is a negative order incapable of being stayed; only costs can be executed

Reasoning

Under Order 42 Rule 6(1) and (2), stay requires, among other things, that there be an order capable of execution. The trial court's judgment simply dismissed the Originating Summons with costs; it made no positive order requiring the Applicant to do or refrain from doing anything. Following Western College and Kaushik Panchamatia, a negative order cannot be stayed, so the court lacked mandate to grant the relief sought.

p. 3

Legal principles established

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  • A negative order – a judgment merely dismissing a suit – is incapable of being stayed because there is nothing to execute except costs
  • Where a court has not ordered any party to do anything or refrain from doing anything or pay any sum, the only execution flowing from the judgment is costs

Court orders

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  1. 1.The application dated 15th July 2021 is dismissed
  2. 2.Costs of the application to the Respondent
On appeal from
Environment and Land Court (trial court, first instance judgment of 28/05/2021)
Originating Summons dated 27th January 2005
Jurisdiction invoked
Sections 3A, 3B, 6 and 63(e) of the Civil Procedure Act; Order 42 Rule 6(6) and Order 51 Rule 1 of the Civil Procedure Rules (application for stay of execution pending intended appeal to the Court of 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, "Justus Munuve Kilonzo v Joseph Mung’utu Munuvi [2022] KEELC 240 (KLR)", Case Analysis (2022). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/240/eng@2022-04-27

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