Statsala & another v Kevin & 2 others (Petition 9 of 2023) [2024] KEELRC 1707 (KLR)
The bottom line
#You cannot stay a judgment that only dismissed your case—Kenyan courts hold there is simply nothing to execute or stay.
What this practically means
#Executive summary
#Key legal issues
#Whether stay of execution pending appeal can issue where the judgment sought to be stayed was a dismissal (a negative order)
No - a negative order contains nothing to execute and the application for stay is rendered moot
The court found the 16th April 2024 judgment merely dismissed the petition with no orders as to costs; nothing was ordered to be done or paid. Following Kaushik Panchamatia (which adopted Western College), a negative order is incapable of being stayed because there is nothing to stay. There is 'absolutely nothing to stay' in this case.
Whether failure to annex a draft memorandum of appeal is fatal to a stay application
Not per se fatal, but the applicant must set out arguable points somewhere; here the applicants did neither
Relying on Cabinet Secretary Ministry of Health v Aura, an arguable appeal need not be presented via a draft memorandum; grounds may appear on the motion or affidavit. However, the applicants neither attached a draft memorandum nor set out any arguable points, so they failed to demonstrate an arguable appeal.
Whether the applicants demonstrated substantial loss
No; the onus of proving substantial loss rests on the applicant and must be discharged with evidence, not mere assertion
The court restated that substantial loss is the cornerstone of the jurisdiction. The applicants merely stated that their rights would be infringed without showing how, and the status quo during the petition (the 1st Respondent already serving) was in effect confirmed by the dismissal, so the application was without merit.
Legal principles established
#- A negative order (dismissal of a petition/suit) is incapable of being stayed because there is nothing to execute
- All three conditions in Order 42 Rule 6 must be satisfied simultaneously - substantial loss, no unreasonable delay, and security
- The burden lies on the applicant to demonstrate the substantial loss it will suffer; mere assertion is insufficient
Court orders
#- 1.The application dated 26th April 2024 is dismissed for lack of merit
- 2.No order as to costs, the cause being public-spirited
- Jurisdiction invoked
- Sections 1A, 1B & 3A of the Civil Procedure Act (Cap 21) and Order 42 Rule 6(1) & (2) and Order 51 Rule 1 of the Civil Procedure Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Statsala & another v Kevin & 2 others (Petition 9 of 2023) [2024] KEELRC 1707 (KLR)", Case Analysis (2024). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keelrc/2024/1707/eng@2024-07-04
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.