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ELCDismissedNotice of Motion Application dated 7th January 2025· [2025] KEELC 137 (KLR)

Kiberetu v Kibiti (Being sued as the administrator of the Estate of M’Irura M’Mungania alias Irura Mungania - Deceased) (Environment & Land Case E009 of 2023) [2025] KEELC 137 (KLR)

Environment and Land Court
20 January 2025
3,586 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
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The bottom line

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Kenya's Environment and Land Court dismissed a stay application because an 11-month unexplained delay and a 'negative decree' made stay impossible.

What this practically means

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Executive summary

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The Plaintiff/Applicant, who had lost a suit claiming the suit property by adverse possession (dismissed with costs on 28 February 2024), moved the court by Notice of Motion dated 7 January 2025 seeking stay of execution of that judgment and decree pending an intended appeal to the Court of Appeal, anchoring the application on Order 42 Rule 6(2) of the Civil Procedure Rules, 2010. The Respondent filed a preliminary objection contending that the decree was a negative decree incapable of being stayed, that the application was filed with inordinate delay and was an abuse of process. The court framed two issues: whether the application was mounted with unreasonable and inordinate delay, attracting the doctrine of laches; and whether the decree arising from dismissal of the suit was a negative decree incapable of stay. On the first issue, the court found the more than 11-month delay inordinate and unexplained, holding that reasons, not duration, unlock the court's discretion, and that dilatoriness invites laches. On the second issue, the court held that the dismissal of the suit produced only a negative decree which commands no party to do or refrain from anything, and is therefore incapable of being stayed, following Western College of Arts & Applied Sciences v Oranga and later Court of Appeal decisions. The application was dismissed with costs to the Respondent, such costs to be taxed by the Deputy Registrar.

Key legal issues

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01

Whether the delay of over 11 months in filing the application was unreasonable and fatal

Holding

The delay was inordinate and unexplained, attracting the doctrine of laches

Reasoning

The judgment and decree were delivered on 28 February 2024 and the application filed on 7 January 2025, a period of over 11 months. Although delay can be excused if satisfactorily explained, the Applicant offered no explanation in the supporting affidavit or otherwise. The court held that reasons, not mere duration, provoke the flow of discretionary power, and dilatoriness creates a fertile basis for invoking laches.

p. 5
02

Whether the decree arising from dismissal of an adverse possession suit is a negative decree capable of stay

Holding

The decree is a negative decree incapable of being stayed

Reasoning

The Applicant's adverse possession suit was dismissed with costs on 28 February 2024. The judgment did not command the Applicant to do or refrain from doing anything, so there is nothing to be executed apart from costs. Following Western College v Oranga and subsequent Court of Appeal authority, a negative order cannot be stayed, and the stay application was therefore premature, misconceived and legally untenable, sought in a vacuum.

p. 6

Legal principles established

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  • A negative decree or order, which does not command a party to do or refrain from doing an action, is incapable of being stayed
  • An applicant for stay of execution must file the application without unreasonable delay, demonstrate sufficient cause, and prove substantial loss

Court orders

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  1. 1.The Application be and is hereby Dismissed
  2. 2.Costs of the Application be and are hereby awarded to the Respondent
  3. 3.The costs in terms of clause [ii] above shall be taxed by the Deputy Registrar in the conventional manner

Authorities

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Legislation

  • Civil Procedure Rules, 2010Order 42 Rule 6(2)

Cases cited (9)

  • Andrew Kiplagat Chemaringo vs Paul Kipkorir Kibet
    [2018] eKLR
  • Njoroge v Kimani
    (Civil Application Nai E049 of 2022) [2022] KECA1188 (KLR) (28 October 2022) (Ruling)
  • Chief Land Registrar & 4 Others vs Nathan Tirop Koech & 4 Others
    [2018] eKLR
  • Charles Barongo Nyakeri vs The County Government of Kisii
    (2020) eKLR
  • Western College of Arts & Applied Sciences v Oranga & Others
    [1976] KLR 63
  • Registered Trustees, Kenya Railways Staff Retirement Benefits Scheme v Millimo, Muthomi & Co. Advocates & 2 others
    (Civil Appeal (Application) E383 of 2021) [2022] KECA 491 (KLR) (18 February 2022) (Ruling)
  • Kenya Commercial Bank Limited vs Tamarind Meadows Limited & 7 Others
    [2016] eKLR
  • Kanwal Sarjit Singh Dhiman vs Keshavji Juvraj Shah
    [2008] eKLR
  • Wilson v Church
Jurisdiction invoked
Order 42 Rule 6(2) of the Civil Procedure Rules, 2010

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, "Kiberetu v Kibiti (Being sued as the administrator of the Estate of M’Irura M’Mungania alias Irura Mungania - Deceased) (Environment & Land Case E009 of 2023) [2025] KEELC 137 (KLR)", Case Analysis (2025). Notice of Motion Application dated 7th January 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/137/eng@2025-01-20

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