Douglas Oribu Matoke v William Sagini Oribu [2022] KEELC 1569 (KLR)
The bottom line
#What this practically means
#Executive summary
#Key legal issues
#Whether the court could grant a temporary injunction pending an appeal filed in the Court of Appeal
No - the court lacks jurisdiction because the appeal is to the Court of Appeal, not to this court; the court is functus officio
Order 42 rule 6(6) permits the High Court to grant a temporary injunction in the exercise of its appellate jurisdiction where an appeal from a subordinate court has been instituted. Here the Applicant appealed to the Court of Appeal, so the ELC had no jurisdiction and, having delivered judgment, was functus officio.
Whether an order dismissing a suit can be stayed
No - it is a negative order incapable of execution, so no stay lies
Relying on Co-operative Bank Ltd v BIFU Kenya and Executive Estates Ltd v Kenya Posts, stay of execution presupposes a positive order imposing obligations to be delayed. A dismissal orders no party to do anything or pay any sum, so there is nothing to stay.
Whether the Applicant satisfied the Order 42 Rule 6 conditions for stay
No - substantial loss was not expounded, and no security was offered, though the application was filed within a month
All three conditions under Order 42 Rule 6 must be met simultaneously. The Applicant merely alleged substantial loss without expounding on the nature of the loss, and offered no security for costs. In any event, the injunction issue was not the subject of the appeal.
Legal principles established
#- A negative order, such as an order dismissing a suit, is incapable of execution and cannot be stayed
- Where judgment has been delivered, a court can only grant an injunction pending an appeal to itself from a subordinate court, not an appeal in a superior court
- Stay of execution pending appeal can only be granted against the order being appealed against
Court orders
#- 1.Application dismissed
- 2.No order as to costs
- Jurisdiction invoked
- Order 42 Rule 6(6) of the Civil Procedure Rules; ELC's power to grant stay of execution of its own decree
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Douglas Oribu Matoke v William Sagini Oribu [2022] KEELC 1569 (KLR)", Case Analysis (2022). Not stated in extract (Notice of Motion dated 26th August 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1569/eng@2022-02-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.