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ELCDismissedNot stated in the judgment (arising from a suit struck out by ruling of March 28, 2022)· [2022] KEELC 3654 (KLR)

Thamaini v Wangai & 2 others (Environment & Land Case E246 of 2021) [2022] KEELC 3654 (KLR)

Environment and Land Court
5 May 2022
EWE. K. Wabwoto
1,000 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~4 min to read original · ~4 min brief

The bottom line

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A Kenyan court refused to pause a ruling that struck out a land suit, confirming that dismissal orders cannot be stayed because there is nothing left to pause.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Nairobi (E. K. Wabwoto, J) dated May 5, 2022 on a notice of motion dated April 8, 2022. The applicant sought stay of execution of the court's ruling and decree of March 28, 2022, which had struck out his suit with costs to the 1st and 2nd respondents, pending an intended appeal before the Court of Appeal (Nairobi Civil Application No. E255 of 2022). He further sought that any stay operate as a reinstatement of conservatory interim orders issued on July 29, 2021 by L. Komingoi, J, fearing eviction or demolition of his property pursuant to a decree in Nairobi ELC No. 554 of 2008. Counsel for the applicant argued the appeal was arguable and would be rendered nugatory; the 3rd respondent did not oppose; the 1st and 2nd respondents argued the order was a negative order incapable of being stayed, that the court was functus officio, and that the application was an abuse of process. Applying the settled arguability-plus-nugatory test (Ishmael Kagunyi Thande v Housing Finance of Kenya Ltd), and adopting Kaushik Panchamatia v Prime Bank Limited, the court held that the March 28, 2022 order striking out the suit was a negative order with nothing to stay. The application was dismissed with no orders as to costs.

Key legal issues

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01

Whether the March 28, 2022 order striking out the suit is capable of being stayed

Holding

It is not; striking out a suit is a negative order leaving nothing to stay

Reasoning

The court noted that the effect of the ruling of March 28, 2022 was to strike out the suit as an abuse of process, so that no suit remained in existence. Relying on Kaushik Panchamatia & 3 others v Prime Bank Limited & Another, the court adopted the position that a negative order is incapable of being stayed because there is nothing to stay, and declined jurisdiction to grant the stay prayed for.

p. 2
02

Whether the applicant demonstrated an arguable appeal and nugatory prejudice

Holding

The court could not conclude the appeal was frivolous, but the application still failed because no stayable order existed

Reasoning

The court applied the settled two-limb test from Ishmael Kagunyi Thande v Housing Finance of Kenya Ltd: arguability and nugatory-ness. While the applicant's appeal could not be dismissed as frivolous at that stage, the threshold obstacle was that the order sought to be stayed was a negative order, which was dispositive of the application regardless of arguability.

p. 2

Legal principles established

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  • An applicant for stay pending appeal must show an arguable appeal and that the appeal will be rendered nugatory unless stay is granted
  • A negative order, such as an order striking out a suit, is incapable of being stayed because there is nothing to stay
  • An arguable appeal need not be one that must necessarily succeed

Court orders

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  1. 1.The application dated April 8, 2022 is dismissed with no orders as to costs

Authorities

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Cases cited (4)

  • Ishmael Kagunyi Thande v Housing Finance of Kenya Ltd
    Civil Application No. Nai 157 of 2006
  • Dennis Mogambi Mong’are vs. Attorney General & others
    [2012] eKLR
  • Equity Bank Limited v West Link Mbo Limited
    Civil Application No. Nai 78 of 2011
  • 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 pending appeal (application directed to this Court; appeal lodged before the Court of Appeal vide Nairobi Civil Application No. E255 of 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, "Thamaini v Wangai & 2 others (Environment & Land Case E246 of 2021) [2022] KEELC 3654 (KLR)", Case Analysis (2022). Not stated in the judgment (arising from a suit struck out by ruling of March 28, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3654/eng@2022-05-05

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