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ELCDismissedNot stated in the judgment (Kisii High Court)· [2022] KEELC 3616 (KLR)

Otundo & 2 others v Co-operative Bank of Kenya & another (Environment & Land Case 6B of 2021) [2022] KEELC 3616 (KLR)

High Court of Kenya
10 May 2022
JOJ.M Onyango
976 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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The Applicants, plaintiffs in a suit against a bank (1st Defendant) and its agent (2nd Defendant), had their application for injunction restraining disposal of three suit properties dismissed on 8 December 2021. They filed a Notice of Appeal dated 17 January 2022 and a Notice of Motion dated 24 January 2022 seeking stay of execution and stay of proceedings pending appeal. The 1st Respondent, through a replying affidavit of Joel Odhiambo of its Kisii branch, opposed the application, contending that only a Notice of Appeal had been filed, that the Applicants had admitted the debt in the main suit and earlier application, and that no substantial loss or security for the debt had been demonstrated. The court framed two issues: entitlement to stay of execution and entitlement to stay of proceedings pending appeal. Relying on Western College of Arts and Applied Sciences v EP Oranga and Raymond M. Omboga v Austine Pyan Maranga, the court held that the order sought to be stayed - the dismissal of the injunction application - was a negative order incapable of execution save for costs, and therefore incapable of stay. The court noted that the Applicants' complaints about the Respondents' exercise of the statutory power of sale were not the issue before the court, and that no basis had been laid for staying the proceedings. The application was dismissed with costs to the 1st Respondent.

Key legal issues

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01

Whether stay of execution may issue in respect of an order dismissing an application for injunction

Holding

A ruling that dismisses an application contains no positive order capable of execution and cannot be stayed; the applicant remains in the position he was in before coming to court

Reasoning

The court relied on Western College of Arts and Applied Sciences v EP Oranga, where the Court of Appeal held that where the court has not ordered any party to do or refrain from doing anything, there is nothing to execute and hence nothing to stay. Makhandia J in Raymond M. Omboga v Austine Pyan Maranga likewise held that a dismissal is a negative order incapable of stay. The 8 December 2021 ruling dismissed the injunction application and imposed no obligation on the Applicants beyond costs.

p. 2
02

Whether stay of proceedings pending appeal ought to issue

Holding

Stay of proceedings refused because no basis was laid

Reasoning

Beyond seeking to stay a negative order, the Applicants advanced no foundation for staying the proceedings before the court. The court accordingly declined to stay the suit pending the intended appeal in the Court of Appeal.

p. 3

Legal principles established

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  • A negative order dismissing an application is incapable of execution and therefore incapable of stay

Court orders

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  1. 1.The application dated 24th January 2022 seeking stay of execution and stay of proceedings pending appeal is dismissed with costs to the 1st Respondent.

Authorities

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Cases cited (2)

  • Western College of Arts and Applied Sciences v EP Oranga & 3 others
    [1976] eKLR
  • Raymond M. Omboga v Austine Pyan Maranga
    Kisii HCCA No 15 of 2010
On appeal from
Court of Appeal (intended appeal; Notice of Appeal filed 17 January 2022)
Not stated
Jurisdiction invoked
Inherent jurisdiction to stay proceedings pending appeal; application under Notice of Motion dated 24 January 2022

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, "Otundo & 2 others v Co-operative Bank of Kenya & another (Environment & Land Case 6B of 2021) [2022] KEELC 3616 (KLR)", Case Analysis (2022). Not stated in the judgment (Kisii High Court). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3616/eng@2022-05-10

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