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ELCDismissedEldoret ELC Case No. 159 of 2015 (ruling application dated 6th November 2023)· [2024] KEELC 5399 (KLR)

Busienei v Alphax Colllege Limited; Kenya Forest Service & another (Interested Parties) (Environment & Land Case 159 of 2015) [2024] KEELC 5399 (KLR)

Environment and Land Court
18 July 2024
JOJ.M Onyango
2,547 words in judgment
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The bottom line

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Kenya's Environment and Land Court dismissed a stay application, confirming a dismissed suit creates no enforceable order to stay.

What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Eldoret (J.M Onyango, J) on a Notice of Motion dated 6th November 2023 in which the Plaintiff/Applicant sought stay of execution of the court's judgment of 28th September 2023 pending appeal, and admission of the appeal out of time, invoking Sections 3 and 3A of the Civil Procedure Act and Order 42 Rule 6 of the Civil Procedure Rules. The Respondents opposed; the 1st and 2nd Interested Parties raised a preliminary objection that the incoming firm of advocates was not properly on record and that the threshold in Order 42 Rule 6 was not met. The 1st Defendant/Respondent argued that the judgment dismissed the Applicant's suit, producing a negative decree incapable of execution, and that no appeal existed. The court framed two issues: whether the appeal should be admitted out of time, and whether stay should be granted. Applying the Salat principles, it held the two-month delay, though not inordinate, was unexplained, and that the annexures did not include the Notice of Appeal; the draft memorandum also misdescribed the decision as a ruling. On stay, the court found the substantial loss alleged was unsubstantiated and, crucially, that the dismissal of the suit was a negative order incapable of being stayed, following the Re Sonalux line of authority. It further held the incoming firm of Koech-Lelei & Co Advocates was not properly on record, the consent being unaccompanied by a court order as required by Order 9 Rule 9. The application was dismissed with costs to the Respondents on 18th July 2024.

Key legal issues

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01

Extension of time to file appeal

Holding

Refused; delay not adequately explained and no Notice of Appeal annexed

Reasoning

Applying Salat, extension of time is an equitable remedy requiring the applicant to lay a basis and explain the delay. The two-month delay was not inordinate but unexplained, and the draft memorandum appealed against a non-existent ruling; thus the discretion was not exercised in the Applicant's favour.

p. 3
02

Stay of execution pending appeal

Holding

Refused; the decree is negative and incapable of execution or stay

Reasoning

Under Order 42 Rule 6 the applicant must show substantial loss, no undue delay, and security. Substantial loss was alleged but unsubstantiated, and since the suit was dismissed the decree is negative - there is nothing to enforce or restrain, so no stay can lie.

p. 4
03

Whether the incoming firm of advocates is properly on record

Holding

The firm is not properly on record; consent exists but no court order adopting it was obtained

Reasoning

Order 9 Rule 9 mandates a court order or filed consent for a change of advocate after judgment. The consent dated 24th October 2023 was exhibited but the order of the court adopting it was missing, so the requirement was not fully satisfied.

p. 5

Legal principles established

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  • A negative order, such as a dismissal of a suit, is not capable of being stayed
  • A delay in filing an appeal, however short, must be explained to the satisfaction of the court
  • Change of advocates after judgment requires an order of the court or a filed consent as mandated by Order 9 Rule 9

Court orders

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  1. 1.The Notice of Motion dated 6th November 2023 is dismissed
  2. 2.Costs of the application to the Respondents

Authorities

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Legislation

  • Civil Procedure ActSections 3 and 3A
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 51 Rule 1
  • Civil Procedure RulesOrder 9 Rule 9

Cases cited (7)

  • Nicholas Kiptoo Arap Salat v IEBC & 7 Others
    (2014) eKLR
  • Odera Obar & Co Advocates v Acquva Agencies Limited
    (2021) eKLR
  • Tropical Supplies Ltd & 2 Others v International Credit Bank Ltd
    (2004) EA 331
  • James Wangalwa & Another vs. Agnes Naliaka Cheseto
    [2012] eKLR
  • Milcah Jeruto Tallam t/a Milka Faith Enterprises v Fina Bank Limited & Another
    (2013) eKLR
  • Ndungu Kinyanjui vs Kibichoi Kugeria Services & Another
    Civil Application No Nai 79 0f 2007 (unreported)
  • S. K. Tarwadi vs Veronica Muehlmann
    [2019] eKLR
Jurisdiction invoked
Sections 3 and 3A of the Civil Procedure Act, Cap 21 and Order 42 Rule 6 and Order 51 Rule 1 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, "Busienei v Alphax Colllege Limited; Kenya Forest Service & another (Interested Parties) (Environment & Land Case 159 of 2015) [2024] KEELC 5399 (KLR)", Case Analysis (2024). Eldoret ELC Case No. 159 of 2015 (ruling application dated 6th November 2023). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5399/eng@2024-07-18

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