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ELCDismissed· [2024] KEELC 4648 (KLR)

PASILIANO MUKOYA WAMORE v BENVILLY SHIACHI OMAR

Environment and Land Court
13 June 2024
990 words in judgment
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The bottom line

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The Environment and Land Court dismissed a bid to block eviction pending appeal, ruling that a dismissed suit cannot be 'stayed' because there is nothing to execute.

What this practically means

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Executive summary

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This ruling of the Environment and Land Court at Kakamega (D. O. Ohungo, J) determined a Notice of Motion dated 12th June 2023 in which the plaintiff, whose suit had been dismissed with costs on 28th March 2023, sought an injunction to restrain the defendant from evicting him from the suit property pending his appeal, or alternatively maintenance of the status quo that existed prior to the judgment. The application was brought under Order 42 rule 6(2) of the Civil Procedure Rules, 2010 following extension of time to file a Notice of Appeal granted on 30th May 2023. The plaintiff deposed that he farmed the land through an agent, Ernest Wamore, with sugar cane, maize and vegetables growing on it, and that a letter of 15th May 2023 from the defendant misinterpreted the judgment and threatened him with eviction, which would cause him substantial loss. The defendant, who had been kept from his land for 23 years, opposed the application, arguing reliance on authority that substantial loss had not been demonstrated and that there had been unreasonable delay. The court framed two issues: whether an injunction pending appeal should be granted, and costs. It held that the jurisdiction under Order 42 rule 6 is akin to stay of execution, requiring proof of substantial loss, absence of unreasonable delay and security; since the judgment appealed was a bare dismissal, it was a negative order incapable of execution and there was nothing to stay. The application was dismissed with costs to the defendant on 13th June 2024.

Key legal issues

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01

Whether an injunction pending appeal under Order 42 rule 6(2) could issue

Holding

No. The jurisdiction is akin to stay of execution, requires demonstration of substantial loss, absence of unreasonable delay and security; the underlying judgment being a bare dismissal is a negative order incapable of execution, so nothing exists to stay.

Reasoning

The court applied Order 42 rule 6(1) and (2), noting an applicant must show substantial loss, that the application was made without unreasonable delay, and offer security. It then observed the judgment being appealed was a dismissal of the plaintiff's suit, which is negative and incapable of execution, so there was nothing to stay. The application was accordingly without merit and was dismissed with costs.

p. 2

Legal principles established

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  • A judgment dismissing a suit is a negative order incapable of execution, hence there is nothing to stay or enjoin pending appeal
  • Substantial loss is the cornerstone of the jurisdiction to grant stay of execution pending appeal

Court orders

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  1. 1.Dismissal of the Notice of Motion dated 12th June 2023 with costs to the defendant

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 rule 6 (1)
  • Civil Procedure Rules, 2010Order 42 rule 6 (2)

Cases cited (5)

  • Charles Kariuki Njuri v Francis Kimaru Rwara (suing as Administrator of Estate of Rwara Kimaru alias Benson Rwara Kimaru (Deceased)
    [2020] eKLR
  • Kenya Power & Lighting Co. Ltd v Kigaita Ngare Unduthu & 36 others
    [2020] eKLR
  • Kenya Shell Limited v Benjamin Karuga Kibiru & another
    [1986] eKLR
  • Western College of Arts and Applied Sciences v EP Oranga & 3 others
    [1976] eKLR
  • Jennifer Akinyi Osodo v Boniface Okumu Osodo & 3 others
    [2021] eKLR
Jurisdiction invoked
Order 42 rule 6 (2) of the Civil Procedure Rules, 2010

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, "PASILIANO MUKOYA WAMORE v BENVILLY SHIACHI OMAR", Case Analysis (2024). . Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4648/eng@2024-06-13

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