PASILIANO MUKOYA WAMORE v BENVILLY SHIACHI OMAR
The bottom line
#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
#Executive summary
#Key legal issues
#Whether an injunction pending appeal under Order 42 rule 6(2) could issue
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.
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.
Legal principles established
#- 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
#- 1.Dismissal of the Notice of Motion dated 12th June 2023 with costs to the defendant
- Jurisdiction invoked
- Order 42 rule 6 (2) of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.