Nabule & another v Tamu & another (Environment and Land Appeal 3 of 2024) [2024] KEELC 6171 (KLR)
The bottom line
#The High Court in Vihiga protected a family's 60-year occupation of their land pending appeal, but declined a stay because you cannot stay a judgment that simply dismissed a suit.
What this practically means
#Executive summary
#Key legal issues
#Whether stay of execution could be granted against a negative order
Stay of execution was refused because the judgment under appeal merely dismissed the appellants' suit; no positive order exists for the court to stay or restrain.
The court applied Order 42 Rule 6(2) and authorities holding that where a suit is simply dismissed with costs, the only thing capable of execution is costs, and since costs had not been assessed and no eviction order was granted, there was nothing to stay. The applicant bears the burden of proving substantial loss, which was not discharged.
Whether a temporary injunction preserving the appellants' occupation should issue pending appeal
A temporary injunction was granted restraining the Respondents from interfering with the appellants' occupation of the suit land pending the appeal.
Applying Order 42 Rule 6(6) and Order 40 Rule 1 and the Giella v Cassman Brown principles, the court found that the unchallenged evidence of long occupation since 1965 and the appellants' claimed beneficial/proprietary interest established a prima facie case, and that preserving the status quo served the interest of justice pending the appeal.
Legal principles established
#- No stay of execution lies in respect of a negative order such as a dismissal of a suit.
- An applicant for stay must prove substantial loss, absence of unreasonable delay and offer security under Order 42 Rule 6(2).
- The Giella v Cassman Brown conditions govern the grant of temporary injunctions.
Court orders
#- 1.An order of temporary injunction restraining the Respondents and their agents, employees and/or servants from interfering with the applicants' occupation of land parcel No. West Bunyore/Embali/2264 pending hearing and determination of the appeal
- 2.Costs of the application to be in the appeal
- On appeal from
- Trial court (judgment delivered 18th January 2024 dismissing the appellants' suit)
- Jurisdiction invoked
- Sections 1A, 1B, 3A and 63(e) of the Civil Procedure Act; Order 40 Rule 1, Order 42 Rule 6(1) and (6) and Order 51 Rule 1 of the Civil Procedure Rules; Article 159(2)(b) and (d) of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nabule & another v Tamu & another (Environment and Land Appeal 3 of 2024) [2024] KEELC 6171 (KLR)", Case Analysis (2024). Not stated in judgment (Appellants' Notice of Motion dated 2nd April 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6171/eng@2024-09-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.