Kaiganira v Wangati (Environment and Land Appeal E36 of 2022) [2023] KEELC 937 (KLR)
The bottom line
#A Nakuru court froze a land consent order until an appeal is heard, but confirmed you cannot stay a ruling that merely dismisses a review application.
What this practically means
#Executive summary
#Key legal issues
#Whether stay of execution lies over a ruling dismissing a review application
No - the dismissal of a review application is a negative order incapable of execution save for costs, and therefore incapable of being stayed; substantial loss does not arise.
The trial magistrate's ruling of 22/09/2022 merely dismissed the appellant's review application dated 19/08/2021. It did not order any party to do or refrain from doing anything. Following KCB v Tamarind Meadows, Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah and Western College of Arts & Applied Sciences v Oranga, such a negative order leaves the applicant in the position he was in before coming to court, so no substantial loss can arise and stay cannot issue over it.
Whether the consent order dated 13/03/2020 and adopted on 20/05/2020 can be executed as it is
The executability of the consent is a triable issue sufficient to justify preserving the status quo pending appeal.
The consent was recorded without a hearing on merits and the appellant disputes it on grounds of illness, ambiguity, alleged non-disclosure of valuations and absence at its adoption, claims the respondent did not rebut. Given developments on land registered in the respondent's name but reportedly being financed by the appellant, the court weighed the respondent's remediable delay against the appellant's potentially irreversible loss and preserved the status quo.
Whether leave to appeal out of time was necessary
No - the memorandum of appeal filed on 13/10/2022 was within the 30 days allowed by Section 79G of the Civil Procedure Act.
Section 79G requires appeals from subordinate courts to the High Court to be filed within thirty days of the order appealed against. The ruling was delivered on 22/09/2022 and the memorandum of appeal filed on 13/10/2022, which is within the period, so the proviso on admission out of time was not engaged and leave was unnecessary.
Legal principles established
#- A negative order, one which does not order any party to do or refrain from doing anything, is incapable of execution save in respect of costs, and is incapable of being stayed.
- A court hearing a stay application may, without going into the merits of the appeal, preserve the status quo where the applicant stands to suffer serious loss should the appeal succeed long after execution has issued.
Court orders
#- 1.Stay of execution of the consent entered into on 20/05/2020 pending the hearing and determination of the appeal
- 2.Orders of status quo to be maintained pending the hearing and determination of the appeal
- 3.Refusal of leave to appeal since the appeal was filed within time
- 4.Refusal of the prayer to allow the Notice of Motion dated 19/08/2021 as it goes to the merits of the appeal
- 5.Deputy Registrar to call for and annex to the appeal record the lower court file in the case appealed from to enable admission and directions
- 6.Appeal to be mentioned online on 15/3/2023 by way of Microsoft Teams
- On appeal from
- Chief Magistrate's Court at Nakuru
- 307 of 2019
- Jurisdiction invoked
- Articles 159, 40, 23, 165, 258 and 259 of the Constitution; Sections 1A, 1B, 3A & 80 of the Civil Procedure Act; Order 42 Rule 6 Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kaiganira v Wangati (Environment and Land Appeal E36 of 2022) [2023] KEELC 937 (KLR)", Case Analysis (2023). Nakuru Chief Magistrate's Court Civil Appeal arising from CMCC No. 307 of 2019 (ruling dated 22/09/2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/937/eng@2023-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.