Kembe v Sule
The bottom line
#A Kenyan court refused to pause a lost land appeal, ruling that a dismissal cannot be stayed and injunctions pending further appeal belong in the Court of Appeal.
What this practically means
#Executive summary
#Key legal issues
#Whether stay of execution of a dismissing judgment can be granted
No; a judgment that merely dismisses an appeal is a negative order incapable of execution except for costs, and stay of the costs was not justified absent evidence of substantial loss.
Relying on Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah and Raymond M Omboga v Austine Pyan Maranga, the court held that a dismissal contains no positive order capable of execution apart from costs. Under Order 42 rule 6(2), the appellant had to show substantial loss and offer security; he neither explained the loss he would suffer from paying the taxed costs nor suggested the respondent could not refund them if the appeal succeeded.
Whether the ELC can grant an injunction pending appeal to the Court of Appeal
No; Order 42 rule 6(6) empowers the court to grant an injunction only pending an appeal before itself, not pending an appeal to the Court of Appeal.
The court held that granting an injunction pending an appeal against its own decision would require it to assess whether that appeal is arguable, an inquiry reserved to the Court of Appeal. Having dismissed the appeal, the ELC cannot pronounce on the arguability of an appeal from its own judgment; the application for such an injunction lies in the Court of Appeal.
Legal principles established
#- A dismissal of an appeal is a negative order incapable of execution save for costs, and cannot be stayed.
- Substantial loss is the cornerstone of the jurisdiction to grant stay of execution.
- A first-instance appellate court cannot grant an injunction pending appeal to the Court of Appeal; only the Court of Appeal can determine whether an appeal against its own decision is arguable.
Court orders
#- 1.The appellant's notice of motion dated August 1, 2022 is dismissed
- 2.Costs of the application to the respondent
- On appeal from
- Kisumu Chief Magistrate's Court
- ELC No 36 of 2018
- Jurisdiction invoked
- Appellate jurisdiction of the Environment and Land Court; application brought under Order 42 rule 6 of the Civil Procedure Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kembe v Sule", Case Analysis (2023). Environment and Land Appeal 18 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/15724/eng@2023-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.