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ELRCDismissedNot stated in judgment· [2024] KEELRC 1707 (KLR)

Statsala & another v Kevin & 2 others (Petition 9 of 2023) [2024] KEELRC 1707 (KLR)

Environment and Land Court (presumed from coram; not expressly stated)
4 July 2024
3,050 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This ruling by J.W. Keli, Judge, at Kakamega determines a Notice of Motion dated 26th April 2024 by the Petitioners/Applicants seeking stay of execution of the judgment of 16th April 2024 pending an intended appeal to the Court of Appeal. The judgment dismissed the applicants' petition challenging the appointment of the 1st Respondent as Assistant Chief of Shirere Sub-Location, Kakamega County. The Respondents opposed, contending the application was incompetent (a Notice of Appeal is not an appeal), overtaken by events (the 1st Respondent had already assumed office and was confirmed in it as the status quo during the petition), and aimed at staying a negative order. The court framed a single issue: whether the application for stay pending appeal was merited. It applied the three cumulative conditions of Order 42 Rule 6 - substantial loss, no unreasonable delay, and security. Relying on Kaushik Panchamatia v Prime Bank and Western College v Oranga, the court held that because the judgment merely dismissed the petition with no order as to costs, it was a negative order incapable of being stayed, rendering the application moot. It further found the applicants failed to demonstrate substantial loss and, though omission of a draft memorandum of appeal is not fatal per Cabinet Secretary Ministry of Health v Aura, the applicants neither annexed one nor set out any arguable grounds. The application was dismissed with no order as to costs, the cause being public-spirited.

Key legal issues

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01

Whether stay of execution pending appeal can issue where the judgment sought to be stayed was a dismissal (a negative order)

Holding

No - a negative order contains nothing to execute and the application for stay is rendered moot

Reasoning

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.

p. 6
02

Whether failure to annex a draft memorandum of appeal is fatal to a stay application

Holding

Not per se fatal, but the applicant must set out arguable points somewhere; here the applicants did neither

Reasoning

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.

p. 7
03

Whether the applicants demonstrated substantial loss

Holding

No; the onus of proving substantial loss rests on the applicant and must be discharged with evidence, not mere assertion

Reasoning

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.

p. 6

Legal principles established

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  • 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

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  1. 1.The application dated 26th April 2024 is dismissed for lack of merit
  2. 2.No order as to costs, the cause being public-spirited

Authorities

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Legislation

  • Civil Procedure ActSections 1A, 1B & 3A
  • Civil Procedure Rules, 2010Order 42 Rule 6(1) & (2); Order 51 Rule 1
  • Court of Appeal Rules, 2022Rule 77

Cases cited (9)

  • Kenya Shell Ltd v Kibiru & Another
    [1986] eKLR 410
  • Mabel Kibore v National Oil Corporation Of Kenya
    (2017) eKLR
  • Kaushik Panchamatia & 3 others v Prime Bank Limited & another
    [2020] eKLR
  • Western College Farts and Applied Sciences v Oranga & Others
    [1976] KLR 63
  • Rhoda Mukuma v John Abuoga
    [1988] eKLR
  • Butt v The Rent Restriction Tribunal
    Civil Application No Nai 6 of 1979
  • Wilson v Church (No 2)
    [1879] 12 Ch 454
  • Cabinet Secretary Ministry of Health v Aura & 13 others
    (Civil Application E583 of 2023) [2024] KECA 2 (KLR)
  • Ontweka & 3 others v Onderi
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

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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, "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.