Peter Maosa Nyangau v National Bank of Kenya Ltd & another [2022] KEELC 611 (KLR)
The bottom line
#Kenya's Environment and Land Court in Bungoma refused to halt execution because the applicant couldn't clearly identify the order to be stayed or prove real harm.
What this practically means
#Executive summary
#Key legal issues
#Whether stay can issue in respect of a non-existent judgment
The Court cannot stay a judgment that does not exist; the prayer referring to a judgment dated 6th October 2021 is academic and, if it refers to the judgment of 6th October 2020, it is res judicata having been the subject of the ruling of 20th December 2021
Counsel for the 2nd Respondent demonstrated that no judgment was delivered on 6th October 2021; the only judgment was dated 6th October 2020, and any stay of that judgment was already dealt with in the ruling of 20th December 2021. A court cannot stay orders which do not exist and courts do not act in vain.
Whether a negative order can be stayed pending appeal
A ruling that merely dismisses an application without directing any party to do anything is a negative order incapable of execution and not amenable to stay
The ruling of 20th December 2021 dismissed the Applicant's application for stay; it was a negative order. Following the Court of Appeal in Kanwal Sarjit Singh Dhiman v Keshauji Jivraj Shah, such an order is incapable of execution save in respect of costs and cannot be the subject of a stay application.
Whether the Applicant demonstrated substantial loss
The Applicant failed to particularize substantial loss; the claim of eviction was not rebutted by evidence of occupation, and no impecuniosity of the decree-holder was suggested to justify stay of the monetary decree
The Applicant merely stated the appeal would be rendered nugatory if evicted. The 2nd Respondent's averment that the Applicant is not in occupation was not rebutted by supplementary affidavit. A court cannot stay execution of what has already happened, and the Applicant did not suggest the 2nd Respondent could not refund the decretal sum if the appeal succeeded.
Whether any appeal is pending
No appeal is pending before the Court; leave to appeal out of time to this Court having been declined on 20th December 2021, there is no appeal pending
The judgment of the Subordinate Court of 6th October 2020 can only be appealed first to this Court, not directly to the Court of Appeal. Leave having been declined, the intended appeal is not pending, undermining the basis for a stay pending its hearing and determination.
Legal principles established
#- A party seeking stay of a Decree or Judgment must identify with clarity the particular order, decree or judgment sought to be stayed
- A negative order (one dismissing an application and not directing any party to do anything) is incapable of execution and not amenable to stay of execution pending appeal
- Substantial loss is the cornerstone for granting stay of execution pending appeal and must be particularized, not vaguely asserted
Court orders
#- 1.The Notice of Motion dated 10th January 2022 is dismissed with costs to the 2nd Respondent
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules (stay of execution pending appeal to the Court of Appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peter Maosa Nyangau v National Bank of Kenya Ltd & another [2022] KEELC 611 (KLR)", Case Analysis (2022). Bungoma CM ELC Case No 6 of 2015 (Miscellaneous Application - Notice of Motion dated 10th January 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/611/eng@2022-03-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.