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ELCDismissedEnvironment & Land Case 24 of 2017· [2022] KEELC 15051 (KLR)

Anyimu v Mukele & another

Environment and Land Court
25 November 2022
2,536 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Environment and Land Court ruled you cannot stay a judgment that simply dismissed your suit — only positive orders can be stayed.

What this practically means

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Executive summary

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The applicant's suit seeking an order compelling the respondents to transfer land parcels Marachi/Esikoma/1195, 1151 and 1233, allegedly fraudulently acquired, had been dismissed with costs by Omollo J on August 4, 2022, for being filed out of time and failure to prove fraud. The applicant filed a notice of appeal and then this application seeking stay of execution of that judgment pending appeal. The respondents opposed, arguing that a negative order dismissing a suit is incapable of execution and that there was no valid notice of appeal. Olao J held that the judgment dismissing the suit with costs was a negative order - no party was ordered to do anything, and only taxation of the respondents' bill of costs remained. Following Western College of Arts & Applied Sciences v Oranga and Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah, the court held a negative order cannot be stayed. Although the applicant had moved without unreasonable delay, he failed to demonstrate substantial loss - his apprehension about a yet-to-be-filed bill of costs being taxed and executed was mere speculation - and he offered no security as required by Order 42 rule 6. The court also held that the arguability of an intended appeal to the Court of Appeal from its own judgment is not a consideration on such an application. The application was dismissed with costs to the respondents.

Key legal issues

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01

Whether a negative order (dismissal of suit with costs) is capable of being stayed

Holding

A negative order is incapable of execution save in respect of costs, and cannot be stayed

Reasoning

The court relied on Western College of Arts & Applied Sciences v Oranga and Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah, holding that where the High Court has merely dismissed a suit with costs and ordered no party to do anything, there is nothing to execute except costs, so stay of execution does not lie.

p. 2
02

Whether the applicant demonstrated substantial loss

Holding

No; the applicant's apprehension about taxation of costs was mere speculation

Reasoning

The applicant's affidavit only expressed apprehension that respondents would tax and execute a bill of costs not yet filed. The court held that staying execution of a yet-to-be-filed bill would be speculative, and there was no suggestion the respondents were impecunious and incapable of refunding costs if the appeal succeeded.

p. 5
03

Whether the applicant offered security for the due performance of any decree

Holding

No; the applicant made no offer of security or willingness to abide by terms

Reasoning

Order 42 rule 6 requires the applicant to furnish security. The applicant's affidavit and grounds contained no offer of security or statement of willingness to abide by conditions, indicating the application was aimed at scuttling taxation of the respondents' bill of costs rather than pursuing justice.

p. 5
04

Whether arguability of the intended appeal is a consideration for stay pending appeal from the court's own judgment

Holding

No; chances of success of an appeal to the Court of Appeal from this court's own judgment cannot be considered

Reasoning

The court held that assessing whether an appeal is arguable would be wading into dangerous territory; that consideration applies only where the court is considering stay pending an appeal from a subordinate court that it will itself determine, not an appeal to the Court of Appeal from its own decision.

p. 5

Legal principles established

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  • A stay of execution can only be granted where there is a positive order capable of execution; a negative order dismissing a suit is incapable of execution save in respect of costs
  • An applicant for stay must satisfy all four conditions under Order 42 rule 6: sufficient cause, substantial loss, no unreasonable delay, and security
  • Substantial loss is the cornerstone of an application for stay of execution pending appeal

Court orders

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  1. 1.The notice of motion dated August 22, 2022 is dismissed with costs to the respondents

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B, 3 and 3A
  • Civil Procedure RulesOrder 42 rule 6
  • Civil Procedure RulesOrder 51 rule 1
  • High Court (Practice and Procedure Rules)Rule 3

Cases cited (6)

  • Western College of Arts & Applied Sciences vs Oranga & Others
    1976 – 80 1KLR 63

    A negative order dismissing a suit with costs is incapable of execution save in respect of costs

  • Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah
    2008 eKLR

    A negative order incapable of execution cannot be stayed

  • Kenya Shell Ltd v Benjamin Kibiru
    1982 – 88 1KAR 1018 [1986 KLR 410]

    Substantial loss is the cornerstone of jurisdiction to grant stay

  • Machira & Company Advocates v. East African Standard (No 2)
    2002 2 KLR 63

    Particulars of substantial loss must be given; stay not granted on vague speculation

  • Ravji Halai & Another v Thornton & Turpin (1963) Ltd
    Ca Civil Appeal No 15 of 1990 (1990 KLR 365)

    Three conditions fettering the High Court's discretion to order stay of execution

  • Wycliff Sikuku Walusaka v Philip Kaita Wekesa
    2020 eKLR

    Offer of security must come from the applicant as a sign of good faith

Jurisdiction invoked
Order 42 rule 6 and Order 51 rule 1 of the Civil Procedure Rules; Sections 1A, 1B, 3 and 3A of the Civil Procedure Act

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, "Anyimu v Mukele & another", Case Analysis (2022). Environment & Land Case 24 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/15051/eng@2022-11-25

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