Makokha & another v Okello & another
The bottom line
#A Kenyan court refused to stay its own dismissal of a land case, confirming that negative orders cannot be stayed and injunctions pending appeal must come from the appellate court.
What this practically means
#Executive summary
#Key legal issues
#Stay of execution of a negative order
Stay of execution is unavailable where the judgment merely dismissed the suit; only costs could be executed
Order 42 Rule 6 requires an order capable of execution. The judgment of Omollo J dismissed the claim without counter-claim and issued no positive orders. Following Western College and Kanwal Sarjit Singh Dhiman, a negative order dismissing a suit is not amenable to stay, and the applicants also failed to show substantial loss or offer security.
Temporary injunction pending appeal from the same court
The trial court lacks jurisdiction to grant a temporary injunction pending an appeal from its own final judgment; such power belongs to the appellate court under Order 42 Rule 6(6)
Order 42 Rule 6(6) permits temporary injunctions only in the exercise of appellate jurisdiction. The court is functus officio after final judgment and cannot sit on appeal over its own decision or that of a court of concurrent jurisdiction; injunctions under Order 40 Rule 1 also require a pending suit, which no longer exists.
Legal principles established
#- A negative order dismissing a suit is incapable of being stayed pending appeal
- A trial court cannot grant a temporary injunction pending an appeal from its own final judgment; that power lies with the appellate court
Court orders
#- 1.The Notice of Motion dated November 24, 2022 is dismissed
- 2.Costs of the application awarded to the respondents
- Jurisdiction invoked
- Order 42 Rule 6 of the Civil Procedure Rules and section 3A of the Civil Procedure Act (application by the losing plaintiffs before this same court)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Makokha & another v Okello & another", Case Analysis (2023). Environment & Land Case 111 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/16075/eng@2023-02-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.