Shah (Suing as the administrator ad litem of the Estate of Rajnikant Nathoobhai Shah) v Nthuli & 4 others (Environment & Land Case 1196 of 2004) [2022] KEELC 3814 (KLR)
The bottom line
#Kenyan courts cannot stay orders that require nobody to do anything—so you must show real loss and target a positive order when seeking a stay.
What this practically means
#Executive summary
#Key legal issues
#Whether the ruling and order of May 29, 2020 is capable of being stayed
The order was a negative order dismissing the plaintiff's applications to amend the plaint and reopen his case; it is not capable of execution and thus cannot be stayed.
The court traced the impugned ruling to its dismissal of the plaintiff's two applications seeking leave to amend the plaint and reopen his case. Relying on Co-operative Bank of Kenya Ltd v BIFU and Western College of Arts & Applied Sciences v Oranga, it held that stay only delays performance of positive obligations in a decree. Since the ruling directed parties to file submissions and ordered nothing to be done or paid, there was nothing to stay.
Whether the plaintiff demonstrated substantial loss to warrant a stay
The plaintiff did not demonstrate what substantial loss he would suffer from the negative order.
Beyond asserting that the appeal would be rendered nugatory, the plaintiff did not show any concrete loss flowing from the order of May 29, 2020. The court noted that the plaintiff had also declined to file submissions to enable judgment, undermining his claim of prejudice. Without demonstrated substantial loss, the Order 42 rule 6(2) threshold was not met and the application could not succeed.
Legal principles established
#- A stay of execution pending appeal cannot lie in respect of a negative order, as there is nothing capable of execution to stay.
- An applicant for stay under Order 42 rule 6(2) must demonstrate substantial loss, that the application was made without unreasonable delay, and must furnish security.
Court orders
#- 1.Notice of motion application dated January 20, 2021 dismissed with costs
- Jurisdiction invoked
- Order 22 rule 22 and Order 42 rule 6 of the Civil Procedure Rules, 2010 (inherent jurisdiction to grant stay of execution/injunction pending appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Shah (Suing as the administrator ad litem of the Estate of Rajnikant Nathoobhai Shah) v Nthuli & 4 others (Environment & Land Case 1196 of 2004) [2022] KEELC 3814 (KLR)", Case Analysis (2022). Not stated in the excerpt. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3814/eng@2022-06-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.