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ELCDismissedNot stated in judgment (appeal from CMELC No. 51 of 2019 - Kitui)· [2024] KEELC 5686 (KLR)

Mutinda & another (Suing as the legal representatives of the Estate of Ndumi Mutinda - (Deceased)) v Kimotho & 2 others (Land Case Appeal E008 of 2023) [2024] KEELC 5686 (KLR)

Environment and Land Court
22 July 2024
LKL. G. Kimani
1,858 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 refused to pause a case dismissal because dismissals are 'negative orders' with nothing to enforce, so there was nothing to stay.

What this practically means

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Executive summary

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The Appellants/Applicants moved the Environment and Land Court at Kitui by Notice of Motion dated 18th September 2023 seeking a stay of execution of the judgment of the Chief Magistrate's Court at Kitui in CMELC No. 51 of 2019 (Hon. D.W Mburu) delivered on 17th August 2023, together with costs. The application was supported by the 1st Applicant's affidavit, contending that the 1st Respondent, who held the title deed and was in possession of the suit land, threatened to extract a decree and execute, rendering the intended appeal nugatory. The 1st Respondent opposed the application, asserting he had occupied and held title to the suit property since purchasing it from the appellants' parents in 1992, and that no security for due performance had been offered. The court framed the application under Order 42 Rule 6 of the Civil Procedure Rules and restated the classic criteria in Butt v Rent Restriction Tribunal: substantial loss, no unreasonable delay, and security. Examining the trial judgment, the court noted that the suit had merely been dismissed with costs to the 1st defendant, meaning no party was ordered to do or refrain from doing anything. Following Jennifer Akinyi Osodo and Western College of Arts and Applied Sciences, the court held that a dismissal is a negative order incapable of execution and thus nothing can be stayed. The application was dismissed with costs to the 1st Respondent.

Key legal issues

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01

Whether a stay of execution can issue against a dismissal order

Holding

A dismissal with costs is a negative order incapable of execution, so no stay can issue; the appeal would not be rendered nugatory by refusal of stay.

Reasoning

The court reviewed the trial judgment which dismissed the plaintiffs' suit with costs. Following Jennifer Akinyi Osodo and Western College of Arts, it held that where no party is ordered to do or refrain from doing anything, there is nothing to execute and thus nothing to stay. The applicants therefore failed to show substantial loss under Order 42 Rule 6.

p. 3

Legal principles established

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  • A stay of execution can only issue where the judgment sought to be appealed contains a positive order capable of execution; a mere dismissal is a negative order incapable of stay.

Court orders

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  1. 1.The application for stay of execution dated 18th September 2023 is dismissed with costs to the 1st Respondent

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(1) and (2)

Cases cited (9)

  • Stanley Kangethe Kinyanjui v Tony Keter & 5 others
    [2013] eKLR
  • Mbeneka v Kioko & another
    (ELC appeal E014 of 2023) (2023) KEELC 19423 (KLR) (24th July 2023) (Ruling)
  • Vishram Ravji Halai v Thornton & Turpin
    (1990) KLR 265
  • Nicholas Mutuku Mwasuna v Patricia Mueni Kilonzo
    [2022] eKLR
  • Butt v Rent Restriction Tribunal
    [1979] eKLR
  • Jennifer Akinyi Osodo v Boniface Okumu Osodo & 3 others
    [2021] eKLR
  • Western College of Arts and Applied Sciences v EP Oranga & 3 others
    [1976] eKLR
  • Wilson v Church
  • Raymond M. Omboga v Austine Pyan Maranga Kisii HCCA No 15 of 2010
On appeal from
Chief Magistrate's Court at Kitui
CMELC No. 51 of 2019 - Kitui
Jurisdiction invoked
Order 42 Rule 6 of the Civil Procedure Rules, 2010 (stay of execution pending appeal)

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, "Mutinda & another (Suing as the legal representatives of the Estate of Ndumi Mutinda - (Deceased)) v Kimotho & 2 others (Land Case Appeal E008 of 2023) [2024] KEELC 5686 (KLR)", Case Analysis (2024). Not stated in judgment (appeal from CMELC No. 51 of 2019 - Kitui). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/5686/eng@2024-07-22

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