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ELCDismissedEldoret High Court (ELC) Appeal arising from Eldoret Chief Magistrate E&L Case No E200 of 2021· [2023] KEELC 916 (KLR)

Jepkemoi v Rono & 4 others (Environment and Land Appeal 32 of 2022) [2023] KEELC 916 (KLR)

Environment and Land Court (High Court exercising appellate jurisdiction)
16 February 2023
EOE. O. Obaga
927 words in judgment
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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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This is a ruling on a notice of motion dated October 19, 2022 in which the appellant/applicant, the wife of the 1st defendant/respondent, sought stay of execution of a ruling of Hon. Wairimu (SPM) delivered November 1, 2022 in Eldoret Chief Magistrate E&L Case No E200 of 2021, together with an injunction restraining the 3rd and 4th respondents from selling property known as LR No Eldoret Municipality/Block 14/2309 pending her appeal. The suit property was sold by the 1st respondent to the 2nd respondent, who charged it to NIC Bank (later NCBA Bank). The applicant claims matrimonial property and spousal rights over it, alleging forged spousal consents and no knowledge of the sale or of High Court Suit No 23 of 2020 in which the 2nd respondent failed to obtain an injunction. The 3rd and 4th respondents opposed, arguing no stay lies against a negative order. E. O. Obaga J found the lower court ruling was a negative order merely dismissing the applicant's injunction application, with nothing capable of being stayed and no demonstration of an arguable appeal. On the nugatory test, the court held that even if the property is sold, the applicant would be compensated if she succeeds, and disbelieved her professed ignorance of the sale. The application was dismissed with costs to the 3rd and 4th respondents.

Key legal issues

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01

Whether there is an order capable of being stayed

Holding

There is none; the lower court ruling was a negative order dismissing the application without any directive

Reasoning

The trial magistrate merely dismissed the applicant's injunction application. No costs order was made and no party was restrained or directed to do or refrain from any act. A negative order cannot be stayed, so the threshold for stay of execution was not met.

p. 2
02

Whether the appeal would be rendered nugatory without an injunction

Holding

No; the applicant would be compensated if she ultimately succeeds

Reasoning

The suit property is no longer in the hands of the 1st respondent, and the applicant was not party to the High Court suit. Damages would be an adequate remedy, and the applicant's claim of ignorance of the sale was disbelieved since the property was valued before the sale publication and she resides on it.

p. 3

Legal principles established

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  • An arguable appeal is not one which will necessarily succeed
  • No stay of execution can lie against a negative order that does not direct any party to do or abstain from doing anything

Court orders

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  1. 1.The applicant's notice of motion dated October 19, 2022 is dismissed with costs to the 3rd and 4th respondents

Authorities

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Cases cited (1)

  • Yellow Horse Inns Ltd v A A Kawir Transporters & 4 others
    (2014) eKLR
On appeal from
Chief Magistrate's Court, Eldoret
E&L Case No E200 of 2021
Jurisdiction invoked
Appellate jurisdiction over an appeal from the Chief Magistrate's Court in an Environment and Land matter

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, "Jepkemoi v Rono & 4 others (Environment and Land Appeal 32 of 2022) [2023] KEELC 916 (KLR)", Case Analysis (2023). Eldoret High Court (ELC) Appeal arising from Eldoret Chief Magistrate E&L Case No E200 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/916/eng@2023-02-16

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