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ELCDismissed· [2024] KEELC 4524 (KLR)

Flooring & Interiors Limited v Muriithi & 2 others (Environment & Land Case 237 of 2013) [2024] KEELC 4524 (KLR)

Environment and Land Court
7 June 2024
JOJ. O. Olola
854 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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A Kenyan court cannot stay a judgment that merely dismisses a lawsuit — there is nothing to enforce, so such appeals proceed without stay.

What this practically means

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Executive summary

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By a Notice of Motion dated 11th May 2023, M/s Flooring and Interiors Ltd, the plaintiff, sought a stay of the judgment and decree of the Environment and Land Court dated 27th April 2023 pending an intended appeal to the Court of Appeal. The application, supported by an affidavit of the plaintiff's director Wahome Gitonga, was premised on imminent danger of the plaintiff losing the suit premises, the risk of the appeal being rendered nugatory, absence of prejudice to the respondents, and fairness. Peter Ndegwa Muriithi, the 1st Defendant, opposed the Motion through Grounds of Opposition, contending that there were no reasonable grounds for the orders sought, that a negative order - here a decree dismissing the plaintiff's case - cannot be stayed, and that the appeal would not be rendered nugatory. Justice J. O. Olola considered Order 42 Rule 6(2) of the Civil Procedure Rules, which requires substantial loss, absence of unreasonable delay and security, and observed that the power to grant stay is discretionary. Reviewing the underlying suit, in which the plaintiff had sought declarations of illegality of sub-divisions of LR No. 9395/103, cancellation of deed plans and titles, an injunction and vacant possession, the court noted that its 27th April 2023 judgment had dismissed the claim with costs. That decree was a negative order incapable of execution save in respect of costs, ordering no party to do or refrain from anything. The Motion was therefore misconceived and dismissed with costs to the 1st Defendant.

Key legal issues

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01

Whether stay of execution can issue in respect of a decree dismissing a suit

Holding

No - a decree dismissing a claim is a negative order incapable of execution and thus cannot be stayed

Reasoning

The court reasoned that its judgment of 27th April 2023 merely dismissed the plaintiff's claim for declarations, injunction and possession; it directed no party to do or refrain from anything and required no payment. Since there was nothing to execute apart from costs, the applicant could not demonstrate any substantial loss under Order 42 Rule 6(2), rendering the stay application misconceived and incapable of being granted.

p. 2
02

Conditions precedent to granting stay of execution under Order 42 Rule 6(2)

Holding

The court must be satisfied that substantial loss may result, that the application was made without unreasonable delay, and that security for due performance has been given

Reasoning

The court reproduced Order 42 Rule 6(2) and held that before exercising its discretion to grant or refuse stay, it must be satisfied that substantial loss may result to the applicant unless the order is made, that the application was brought without unreasonable delay, and that security has been given. In this case the applicant could not establish substantial loss because the decree was a negative order.

p. 2

Legal principles established

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  • A decree that merely dismisses a claim and orders no party to do, refrain from doing, or pay anything is a negative order incapable of execution and cannot be stayed
  • The power to grant or refuse stay of execution is discretionary and requires satisfaction that substantial loss may result to the applicant

Court orders

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  1. 1.The Notice of Motion dated 11th May 2023 seeking stay of execution of the Judgment/decree dated 27th April 2023 pending appeal is dismissed
  2. 2.Costs of the application awarded to the 1st Defendant

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)
Jurisdiction invoked
Order 42 Rule 6(2) of the Civil Procedure Rules

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, "Flooring & Interiors Limited v Muriithi & 2 others (Environment & Land Case 237 of 2013) [2024] KEELC 4524 (KLR)", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4524/eng@2024-06-07

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