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ELCDismissedEnvironment and Land Appeal E025 of 2021· [2022] KEELC 14963 (KLR)

Ochieng v Okinyi & 2 others

Environment and Land Court at Kisumu
24 November 2022
EAE. Asati
762 words in judgment
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The bottom line

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A Kenyan court confirmed you cannot get a stay of execution for a judgment that merely dismisses your case—there is nothing to stay.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kisumu (E. Asati, J) determined the appellant's application dated 24th October 2022 seeking stay of execution of the court's own judgment of 30th September 2022, which had dismissed his appeal against the judgment and decree of the Principal Magistrate's Court at Tamu (Hon. P. K. Rugut, delivered 18th March 2021 in Tamu PMCCC No. 32 of 2018), together with the resultant decree of 3rd October 2022, pending an intended appeal to the Court of Appeal. The application was unopposed: an affidavit of service sworn by Fred Edward Otieno Ambala Advocate showed the respondents were served, but no response was filed and none appeared, so the matter proceeded ex parte. The court restated the three conditions for stay under Order 42 rule 6(2) of the Civil Procedure Rules 2010 - substantial loss, application without unreasonable delay, and security for due performance. It then held that the judgment sought to be stayed was a negative order: it merely dismissed the appeal with costs and directed no party to do or refrain from doing anything. Following Western College of Arts and Applied Sciences v Oranga, David Kipruto Chingi and Jenifer Akinyi, the court found that stay is not available for a negative order and that the grounds for stay had not been demonstrated. The application was dismissed with no order as to costs.

Key legal issues

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Availability of stay of execution of a negative order

Holding

Stay of execution cannot be granted where the judgment sought to be stayed is a negative order that directs no party to do or refrain from doing anything, save for costs.

Reasoning

The court set out the three conditions in Order 42 rule 6(2): substantial loss, no unreasonable delay, and security. It then observed that the judgment whose execution was sought to be stayed merely dismissed the appeal with costs, directing no party to act or refrain from acting. Relying on Western College of Arts and Applied Sciences v Oranga and other authorities, it held there was nothing to stay and the grounds for stay were not demonstrated.

p. 2

Legal principles established

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  • An order of stay of execution is not available in respect of a negative order (a judgment dismissing a suit or appeal with no positive relief to execute)

Court orders

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  1. 1.The application dated 24th October 2022 seeking stay of execution is dismissed
  2. 2.No order as to costs
On appeal from
Principal Magistrate's Court at Tamu
Tamu PMCCC No. 32 of 2018
Jurisdiction invoked
Order 42 rule 6(2) of the Civil Procedure Rules 2010 (stay of 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, "Ochieng v Okinyi & 2 others", Case Analysis (2022). Environment and Land Appeal E025 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/14963/eng@2022-11-24

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