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ELCDismissed· [2022] KEELC 1187 (KLR)

Omar Salim Mwakweli & 3 others v Omar Salim Mwakweli & 2 others [2022] KEELC 1187 (KLR)

Environment and Land Court
23 February 2022
MOM.A. ODENY
2,681 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~11 min to read original · ~4 min brief

The bottom line

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Kenya's Environment and Land Court confirmed you cannot stay a ruling that dismissed your case without ordering anything—there is simply nothing to stay.

What this practically means

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Executive summary

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This ruling by M.A. Odeny, Judge, Environment and Land Court at Malindi, determines a Notice of Motion dated 31st August 2021 by the Petitioners seeking stay of the court's ruling of 30th July 2021 pending appeal to the Court of Appeal, together with an injunction barring any dealings, modifications or construction on Plot L.R. No. 4393/III/MN, Vipingo, Kilifi County. The underlying petition had alleged that the 1st Respondent procured NEMA approvals without due process for a 22,000 MT LPG storage facility, breaching the Petitioners' right to a clean and healthy environment. By a preliminary objection, the court had upheld that it lacked jurisdiction under EMCA, which channels EIA licence disputes to the National Environment Tribunal or National Environmental Complaints Committee, and struck out the petition. The applicants argued that the earlier consent maintaining status quo lapsed upon determination of the petition, exposing the environment to risk, and invoked the arguable-appeal and nugatory-appeal tests. The 1st Respondent countered that the dismissal was a negative order incapable of being stayed, that no memorandum of appeal had been filed after over 120 days, and that it was entitled to the fruits of litigation. The court held that a negative order — one where no party was ordered to do or refrain from doing anything or to pay any sum — cannot be stayed, applying KCB v Tamarind Meadows and Kaushik Panchamatia v Prime Bank. Since costs had been ordered to be borne by each party, the applicants had lost nothing. The application was dismissed with each party bearing their own costs.

Key legal issues

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01

Whether stay of execution can issue in respect of a negative order dismissing a petition for want of jurisdiction

Holding

No. A negative order incapable of execution cannot be stayed; since the dismissal carried no costs order (each party bearing own costs), the applicants lost nothing capable of being stayed.

Reasoning

The court applied settled Court of Appeal authority (Western College v Oranga as adopted in KCB v Tamarind Meadows and Kaushik Panchamatia v Prime Bank) that a dismissal without positive orders leaves the applicant in the position they occupied before suit. Substantial loss and nugatory-appeal considerations do not arise. Consequently the injunction limb fell away without further inquiry.

p. 4

Legal principles established

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  • A negative order — one where the court has not ordered parties to do or refrain from doing anything or to pay any sum — is incapable of execution and therefore incapable of being stayed, save in respect of costs.

Court orders

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  1. 1.The Notice of Motion dated 31st August 2021 is dismissed
  2. 2.Each party to bear their own costs

Authorities

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Legislation

  • Environmental Management and Co-ordination (Amendment) Act
  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)
  • Civil Procedure RulesOrder 21(1)
  • Constitutionright to a clean and healthy environment

Cases cited (17)

  • Giella v Cassman Brown
    (1973) EA 358
  • Kenya Tea Growers Association & another v Kenya Plantation and Agricultural Workers Union
    [2012] eKLR
  • Reliance Bank Limited vs Norlake Investments Limited
    (2002) 1 EA 227
  • Shimmers Plaza Limited v National Bank of Kenya Limited
    [2015] eKLR
  • Absalom Dora vs Jaibo Transporters
    [2013] eKLR
  • Western College of Arts and Applied Sciences vs. Oranga
    [1976] KLR 63
  • Peter Anyang' Nyong'o & 2 others v Minister for Finance & another
    [2007] eKLR
  • Gideon Sitelu Konchella vs Daima Bank Ltd
    (2013) eKLR
  • Mobil Kitale Service Station vs Mobil Oil (K) Ltd and Another
    (2004) eKLR
  • Victory Construction vs BM (a minor suing through next friend one PMM)
    (2019) eKLR
  • Michira T/A Machira & Co. Advocates
  • Kenya Women Microfinance Ltd vs Martha Wangari Kamau
    (2020) eKLR
  • Samvir Trustee Limited vs Guardian Bank Limited
    Nairobi HCCC 795 of 1997
  • Kenya Commercial Bank Limited v Tamarind Meadows Limited & 7 Ors
    [2016] eKLR
  • Kanwal Sarjit Singh Dhimažl v. Keshavji Juvraj Shah
    2008 eKLR
  • Raymond M. Omboga v. Austine Pyan Maranga
  • Kaushik Panchamatia & 3 Other Vs Prime Bank Limited & Another
    [2020] eKLR
Jurisdiction invoked
Inherent jurisdiction of the Environment and Land Court to grant stay of execution and injunction pending appeal (application arising from the court's own ruling of 30 July 2021; Order 42 Rule 6 of the Civil Procedure Rules invoked by the Respondent)

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, "Omar Salim Mwakweli & 3 others v Omar Salim Mwakweli & 2 others [2022] KEELC 1187 (KLR)", Case Analysis (2022). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1187/eng@2022-02-23

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