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ELCDismissedApplication dated 10th November 2021 (Notice of Motion)· [2022] KEELC 1919 (KLR)

Republic v Cabinet Secretary in Charge of Lands and Physical Planning & 3 others Ex party Daglas Kanga Shadrack & 3 others; Njeru Kiririka (Interested Parties) [2022] KEELC 1919 (KLR)

High Court of Kenya
31 January 2022
CYC. K. Yano
2,033 words in judgment
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The bottom line

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The High Court in Chuka refused to pause a judgment because the applicants waited six months to ask, and a dismissal judgment harms no one.

What this practically means

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Executive summary

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This was a Notice of Motion dated 10th November 2021 in which the applicants sought stay of execution of a judgment delivered on 28th April 2021 by P. M. Njoroge J, by which their application for judicial review was dismissed. The applicants, deposing through Jediel Rwanda Njue, argued the intended appeal was arguable, that the application was brought without delay, and that they faced eviction from the suit properties and would suffer irreparable harm absent a stay. The interested party opposed, contending the judgment was a negative order incapable of being stayed, that no appeal was properly pending, and that the conditions for stay were unmet. The court, applying Order 42 Rule 6 of the Civil Procedure Rules and the principles in Butt v Rent Restriction Tribunal, identified three prerequisites: substantial loss, absence of undue delay, and security. It found the application filed over six months after judgment was not made timeously. On substantial loss, it held that since the judgment declined the judicial review orders sought, it was a negative order leaving the position as it was, with costs as the only executable element. The applicants therefore could not suffer substantial loss, and even if their appeal succeeded, no such loss would arise from want of a stay. The application was dismissed with costs to the interested party.

Key legal issues

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01

Delay in bringing the stay application

Holding

The application filed more than six months after judgment was not made timeously

Reasoning

The judgment was delivered on 28th April 2021 and the application filed on 10th November 2021, a period exceeding six months. Order 42 Rule 6 requires the application to be made without undue delay; the applicants failed this prerequisite, which alone undermined the application.

p. 3
02

Substantial loss on a negative order

Holding

No substantial loss could flow from a judgment that merely dismissed the applicants' judicial review application, since only costs are executable

Reasoning

The court distinguished what it ordered from what was argued: the judgment directed no party to do or refrain from doing anything or pay any sum other than costs. The applicants' position would remain unchanged unless the Court of Appeal reversed the judgment, so no stay was warranted.

p. 3

Legal principles established

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  • A judgment declining orders sought is a negative order; the only executable element is costs, and a negative order cannot found substantial loss for stay
  • An applicant for stay must show substantial loss, that the application was made without undue delay, and offer security

Court orders

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  1. 1.The Notice of Motion application dated 10th November 2021 is dismissed with costs to the Interested Party

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(1) and (2)
  • Civil Procedure Rules, 2010Order 46 Rule 6(2)
  • Civil Procedure ActSection 2
  • Court of Appeal RulesRule 75(1) & (2)

Cases cited (12)

  • James Wangalwa & Another vs Agnes Naliaka Cheseto
    citation not given
  • Milcah Jeruto vs Fina Bank Ltd
    [2013] eKLR
  • Halai & Another vs Thornton & Turpin [1963] Ltd
    [1990] KLR 365
  • Western College of Arts & Applied Sciences v EP Oranga & 3 Others
    [1976] eKLR
  • Catherine Njeri Maranga –vs– Serah Chege & Another
    [2017] eKLR
  • Bernard Njoroge Kibaki t/a Njowa Njemu Enterprises –v– Equity Bank Limited & Another
    [2020] eKLR
  • Salome Naliaka Wabwile –v- Alfred Okumu Musinala
    [2021] eKLR
  • Butt –vs– Rent Restriction Tribunal
    {1982} KLR 417
  • Kenya Shell Limited –vs– Benjamin Karuga Kigibu & Ruth Wairimu Karuga
    (1982-1988) KAR 1018
  • Machira T/A Machira & Co Advocates –vs– East African Standard (No.2)
    (2002) KLR 63
  • Absalom Dora –v– Turbo Transporters
    (2013) (eKLR)
  • Geoffery Muriungi & another v John Rukunga M’imonyo suing as Legal representative of the estate of Kinoti Simon Rukunga (Deceased)
    [2016] eKLR
On appeal from
null
null
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010 (discretionary power to stay 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, "Republic v Cabinet Secretary in Charge of Lands and Physical Planning & 3 others Ex party Daglas Kanga Shadrack & 3 others; Njeru Kiririka (Interested Parties) [2022] KEELC 1919 (KLR)", Case Analysis (2022). Application dated 10th November 2021 (Notice of Motion). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/1919/eng@2022-01-31

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