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ELCDismissedEnvironment and Land Appeal E004 of 2023· [2023] KEELC 19059 (KLR)
Yego v Kemei & another
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·~2 min to read original · ~4 min briefThe bottom line
#A Kenyan court refused to pause a dismissed land case because a dismissal orders nothing, so there is nothing to stay.
What this practically means
#Executive summary
#This is a ruling of the Environment and Land Court at Kapsabet (M.N. Mwanyale, J) on a Notice of Motion dated May 9, 2023 by Marcela Jepkoros Yego, the appellant, seeking stay of execution of the judgment and decree in Kapsabet CMELC No 32 of 2019 delivered on February 15, 2023, pending the hearing and determination of her appeal. The trial court had dismissed her suit with costs to Paul Kemei, the 1st respondent. The application was supported by the appellant's affidavit and opposed by a replying affidavit of the 1st respondent dated June 5, 2023, who contended that the conditions for stay had not been demonstrated. The application was canvassed by written submissions. The court framed a single issue: whether the applicant was entitled to the stay orders sought pending appeal. The court held that the applicant was seeking to stay a dismissal order, which is a negative order incapable of execution, and that a court cannot stay an action unless there exists a positive order which, if executed, would result in loss to the other party. Relying on Court of Appeal decisions in Kenya Commercial Bank Limited v Tamarina Meadows Limited (which itself quoted Kanwal Sarjit Singh Dhiman v Kehavji Juaraj Shah) and Gitundu v Wathuku, the court found there was no order capable of being stayed and dismissed the application with costs on July 27, 2023.
Key legal issues
#01
Whether stay of execution can issue in respect of a dismissal order pending appeal
Holding
A dismissal is a negative order incapable of execution and cannot be stayed; stay lies only for positive orders whose execution would cause loss
Reasoning
The court reasoned that stay of execution presupposes an order capable of execution. The trial court's judgment merely dismissed the applicant's suit with costs; it did not order any party to do or refrain from doing anything. Following Court of Appeal authority, the court held that no positive order existed to stay, so the application had to fail.
p. 2
Legal principles established
#- A court cannot stay execution of a negative order of dismissal because such an order is incapable of execution
Court orders
#- 1.The Notice of Motion dated May 9, 2023 seeking stay of execution pending appeal is dismissed with costs to the Respondent
- On appeal from
- Principal Magistrate's Court at Kapsabet (CMELC)
- Kapsabet CMELC No 32 of 2019
- Jurisdiction invoked
- Appellate jurisdiction of the Environment and Land Court over appeals from subordinate courts in environment and land matters
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Yego v Kemei & another", Case Analysis (2023). Environment and Land Appeal E004 of 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2023/19059/eng@2023-07-27
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.