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ELCDismissedNot stated in judgment· [2024] KEELC 6580 (KLR)

Okwach (Suing as the Administrator of the Estate of George Okwach Aboge - Deceased) v Othiwo alias Owak Othiwo & another (Environment & Land Case 522 of 2015) [2024] KEELC 6580 (KLR)

Environment and Land Court
2 October 2024
1,005 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The court refused to stay a ruling that only dismissed the Defendants' application, confirming that purely negative orders cannot be stayed in Kenya.

What this practically means

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Executive summary

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This ruling by Okong'o J of the Environment and Land Court, Kisumu, deals with the Defendants' Notice of Motion dated 1st August 2024 seeking stay of execution of a ruling delivered on 4th July 2024, which had dismissed the Defendants' application for review and/or variation of a judgment of Ombwayo J delivered on 7th October 2022 in a land dispute over Kisumu/Dago/250. The Defendants, having filed a notice of appeal to the Court of Appeal, sought a stay and an order maintaining the status quo. The Plaintiff opposed, contending the application was an abuse of process and that the ruling sought to be stayed contained no positive order capable of execution. The court applied Order 42 Rule 6(2) of the Civil Procedure Rules and the authorities of Kenya Shell Limited v Karuga, Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah, and Raymond M. Omboga v Austine Pyan Maranga, holding that the 4th July 2024 ruling was a negative order incapable of execution save as to costs, and that the Defendants had not shown substantial loss. The prayer for maintenance of the status quo was rejected as unintelligible given that judgment had been delivered and prior applications dismissed. The application was dismissed with costs to the Plaintiff on 2nd October 2024.

Key legal issues

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01

Whether the 4th July 2024 ruling is capable of stay

Holding

No; it was a negative order incapable of execution save for costs

Reasoning

The court applied Order 42 Rule 6(2) and authorities holding that a dismissal order is negative and incapable of execution. Substantial loss is a prerequisite; the Defendants showed none beyond possible liability for costs, which does not justify a stay.

p. 2
02

Whether status quo should be maintained

Holding

No basis established

Reasoning

The Defendants' prayer for status quo was unintelligible in the circumstances since judgment had been delivered and their prior stay and review applications had been dismissed; no identifiable status quo was proposed.

p. 3

Legal principles established

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  • A negative order, such as one dismissing an application, is incapable of execution and therefore incapable of stay
  • Substantial loss is the cornerstone of the jurisdiction to grant stay of execution

Court orders

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  1. 1.The Defendants' Notice of Motion dated 1st August 2024 is dismissed with costs to the Plaintiff

Authorities

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Legislation

  • Civil Procedure RulesOrder 42 Rule 6(2)

Cases cited (3)

  • Kenya Shell Limited v Karuga
    [1982–1988] I KAR 1018
  • Kanwal Sarjit Singh Dhiman v Keshavji Jivraj Shah
    [2008] eKLR
  • Raymond M. Omboga v. Austine Pyan Maranga
    Kisii HCCA No 15 of 2010
Jurisdiction invoked
Order 42 Rule 6 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, "Okwach (Suing as the Administrator of the Estate of George Okwach Aboge - Deceased) v Othiwo alias Owak Othiwo & another (Environment & Land Case 522 of 2015) [2024] KEELC 6580 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/6580/eng@2024-10-02

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