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ELCDismissedChamber Summons application dated 14th April 2025, arising from KISUMU MC ELC NO. 109 OF 2019· [2025] KEELC 4940 (KLR)
Achieng (Suing as the Lawful Attorney of Modricks Odindo Asimba) ((Suing as the Lawful Attorney of Modricks Odindo Asimba)) v Wells Oil Limited & 2 others; Ochema & another (Third party) (Environment and Land Appeal E028 of 2025) [2025] KEELC 4940 (KLR)
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·~2 min to read original · ~4 min briefThe bottom line
#What this practically means
#Executive summary
#This ruling of the High Court at Kisumu (E. Asati, J) determined a Chamber Summons application dated 14th April 2025 by the Appellant, brought under Section 10 of the Judicature Act, the High Court Practice Rules and Section 3A of the Civil Procedure Act, seeking a temporary injunction and/or stay restraining the Respondents from taking enforcement steps flowing from the judgment in Kisumu MC ELC No. 109 of 2019 delivered on 7th April 2025, pending appeal. The Appellant argued it had an arguable appeal, had been in continuous possession since 1991, and would suffer irreparable loss and render the appeal nugatory if the property were alienated or it were evicted. The application was opposed by a Replying Affidavit sworn by Jackline Ndungú. The court held that the trial judgment had merely dismissed the Appellant's claim, and a dismissal is a negative order not capable of enforcement or execution. Applying the Court of Appeal's decision in Western College of Arts and Applied Sciences v E P Oranga, the court noted execution could only lie in respect of costs, and there was no evidence of steps towards recovery of costs or imminent execution. The application was found to lack merit and was dismissed, with costs to abide the appeal. The ruling was delivered virtually at Kisumu on 3rd July 2025.
Key legal issues
#01
Enforceability of a negative order for purposes of stay or injunction pending appeal
Holding
A dismissal is a negative order incapable of enforcement; no stay or injunction can issue against it
Reasoning
The court noted it was common ground the trial court merely dismissed the appellant's claim. Relying on Western College of Arts and Applied Sciences v E P Oranga, it held execution can only lie in respect of costs. Since there was no evidence of steps towards recovery of costs or imminent execution, there was nothing to restrain and the application lacked merit.
p. 2
Legal principles established
#- A stay or injunction cannot issue in respect of a negative order (dismissal of a suit), as there is nothing to enforce or restrain
Court orders
#- 1.Application dismissed
- 2.Costs to abide the appeal
- On appeal from
- Magistrates' Court (Kisumu)
- KISUMU MC ELC NO. 109 OF 2019
- Jurisdiction invoked
- Section 10 of the Judicature Act Cap 8, Part 1 Rule 2(2)(a), 3(1) and (2) of the High Court Practice Rules and Section 3A of the Civil Procedure Act
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Achieng (Suing as the Lawful Attorney of Modricks Odindo Asimba) ((Suing as the Lawful Attorney of Modricks Odindo Asimba)) v Wells Oil Limited & 2 others; Ochema & another (Third party) (Environment and Land Appeal E028 of 2025) [2025] KEELC 4940 (KLR)", Case Analysis (2025). Chamber Summons application dated 14th April 2025, arising from KISUMU MC ELC NO. 109 OF 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2025/4940/eng@2025-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.