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ELCDismissedELCA No 3 of 2019 (consolidated with ELCA No 28 of 2019)· [2022] KEELC 3426 (KLR)

Ndege & 2 others v Mbugua & 3 others (Environment and Land Appeal 3 & 28 of 2019 (Consolidated)) [2022] KEELC 3426 (KLR)

Environment and Land Court
23 June 2022
SOS Okong'o
1,349 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court refused to pause a judgment because the orders only dismissed a case and imposed costs—nothing that could actually be enforced or stayed.

What this practically means

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Executive summary

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On April 29, 2021 the Environment and Land Court (S Okong'o, J) allowed the consolidated appeals by Abdalla Mohamed, Johnstone Ndege and David Kengere Atebe against Joseph Kang'ethe Mbugua, setting aside the ruling of Hon GA Mmasi, SPM of January 18, 2019 in CMCC No 13297 of 2006, dismissing the respondent's notice of motion dated November 23, 2018, and confirming that the respondent's suit in the lower court remained dismissed, with costs to the appellants. The respondent then moved the court by notice of motion dated May 3, 2021 under Order 42 rule 6 of the Civil Procedure Rules seeking stay of those orders pending an intended appeal to the Court of Appeal, contending that his title to LR No 6845/93 would be revoked and his appeal rendered nugatory. The appellants opposed, asserting that the respondent had not been in possession since 2004 and that the orders were negative with nothing to stay. The court applied Order 42 rule 6(2) and the authorities on substantial loss and negative orders (Kenya Shell Limited v Karuga; Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah; Raymond M Omboga v Austine Pyan Maranga) and held that apart from costs the orders of April 29, 2021 were negative, incapable of execution and thus incapable of stay; the respondent also failed to show substantial loss on costs. The application was dismissed with costs to the appellants on June 23, 2022.

Key legal issues

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01

Whether the respondent demonstrated substantial loss under Order 42 rule 6(2) of the Civil Procedure Rules

Holding

No substantial loss was established because the orders sought to be stayed were negative and incapable of execution, and no evidence was given that costs, if paid, could not be recovered

Reasoning

The court had allowed the appellants' appeal, set aside the lower court ruling of January 18, 2019, and dismissed the respondent's application - leaving only negative orders apart from costs. The respondent did not contend he was unable to pay costs or that he could not recover them from the appellants. Having found no substantial loss, the court found it unnecessary to consider the other conditions for stay.

p. 3
02

Whether negative orders can be stayed

Holding

Orders which do not direct any party to do or refrain from doing anything are incapable of execution and therefore incapable of stay

Reasoning

Relying on Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah and Raymond M Omboga v Austine Pyan Maranga, the court held that orders merely dismissing an application, save for costs, are negative orders incapable of execution. The respondent was not directed to do or abstain from doing anything, so no stay of execution could issue.

p. 3

Legal principles established

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  • Substantial loss is the cornerstone for the grant of an order of stay of execution
  • Negative orders, which do not direct a party to do or abstain from doing anything, are incapable of execution and thus incapable of being stayed

Court orders

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  1. 1.The notice of motion dated May 3, 2021 is dismissed
  2. 2.Costs of the application awarded to the appellants

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 rule 6, including rule 6(2)(a) and (b)

Cases cited (3)

  • Kenya Shell Limited v Karuga
    [1982 – 1988] I KAR 1018
  • Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah
    [2008] eKLR
  • Raymond M Omboga v Austine Pyan Maranga
    Kisii HCCA No 15 of 2010
On appeal from
Chief Magistrate's Court
CMCC No 13297 of 2006
Jurisdiction invoked
Order 42 rule 6 of the Civil Procedure Rules (application for stay of execution pending 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, "Ndege & 2 others v Mbugua & 3 others (Environment and Land Appeal 3 & 28 of 2019 (Consolidated)) [2022] KEELC 3426 (KLR)", Case Analysis (2022). ELCA No 3 of 2019 (consolidated with ELCA No 28 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3426/eng@2022-06-23

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