[2015] KEELC 696 (KLR)
The court held that the order sought to be stayed was a negative order, specifically a dismissal of the suit, and as such, it was not capable of being stayed. Granting a stay in such circumstances would effectively reinstate the dismissed suit, which is not permissible in law. The court relied on established...
Source-derived case information.
- Citation
- [2015] KEELC 696 (KLR)
- Parties
- Plaintiff: Andrew Githinji Mwihuri; Defendant: Silas Muhuhe Mwaniki
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 224 of 2013
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution and Preliminary Objection
- Outcome
- application dismissed
- Judges
- L Waithaka
- Legal Topics
- Stay of Execution, Authority of Advocate, Preliminary Objection, Dismissal of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Andrew Githinji Mwihuri
Plaintiff
Silas Muhuhe Mwaniki
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution and Preliminary Objection
Legal Issues
- 1 Whether the court can grant a stay of execution against a negative order dismissing a suit.
- 2 Whether the replying affidavit filed by the 2nd defendant without written authority from other defendants is valid.
- 3 Whether the applicant was denied the right to cross-examine the deponent of the replying affidavit.
Ratio Decidendi
The court held that the order sought to be stayed was a negative order, specifically a dismissal of the suit, and as such, it was not capable of being stayed. Granting a stay in such circumstances would effectively reinstate the dismissed suit, which is not permissible in law. The court relied on established precedent that negative orders cannot be stayed. The preliminary objection raised by the respondent was upheld, and the application was dismissed. The court also noted that the issue of authority to file affidavits on behalf of other defendants was governed by the Civil Procedure Rules, but this did not affect the outcome since the substantive order sought was not grantable. No order...
Court Disposition
application dismissed
Orders
- The preliminary objection is upheld.
- The application for stay of execution is dismissed.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NYERI
IN THE HIGH COURT AT NYERI
ENVIRONMENT AND LAND CASE NO. 224 OF 2013
ANDREW GITHINJI MWHIHURI........................................................PLAINTIFF
VS
SILAS MUHUHE MWANIKI..............................................................DEFENDANT
JUDGMENT
The application dated 3/3/2014 seeks an order that this honourable court be pleased to issue an order of stay of execution in Nyeri Environment and Land Court Case No. 224 of 2013 of the ruling dated 21/2/2014 until the hearing and determination of the appeal.The application is based on grounds that the applicant filed the suit on 7th November, 2013 accompanied with an application to stop the defendants from disposing the 10th defendants assets which were to be sold from 10th November 2013. The defendants were served with all relevant court documents upon which the 2nd defendant William Gathecha filed memorandum of appearance and the resolution of the board of Directors of Muhotetu Farmers Company limited and preliminary objection and replying affidavit on 18th November, 2013. The applcant claims that the 2nd defendant had no written authority from the other 9 defendants to act, file or swear the replying affidavit on behalf of the other 9 defendants. He ignored, Order 1 Rule 13(1) (2) of the Civil Procedure Rules which is mandatory to file the written authority in the court file authorizing him to act on behalf of the other defendants.
The application is supported by the affidavit of Andrew Githinji Mwihuri sworn on 3/3/2014 in which he states that the defendant's list of authorities dated 20/11/2013 in the application received in court on 21st November 2013 was not served to the appellant but served to a stranger and addressed to Gakuhi Chege & Co Advocates KCB building P.O. Box 1907-20300 Nyahururu. The 2nd respondent/defendant's William Gathecha Nguyo had no authority to swear the replying affidavit on behalf of the other respondent/defendants for he lucked written authority from the other respondents/defendants to act on their behalf He argues that Order 1 Rule 13 sub-rule (1) and (2) of the Civil Procedure Rules does not allow William Gathecha Nguyo to act on behalf of the other respondents/defendants That the applicant had requested the court to summon the 2nd respondents/defendant William Gathecha Nguyo the deponent of the replying affidavit to be cross-examined by the applicant but was denied the right to cross examine him by the Hon. Trial judge. That order 19 rule 2 sub-rule (1) of the civil procedure rules was rendered nugatory after the denial to invite 2nd Defendant for cross-examination to determine the truth and credibility of the said replying affidavit.
On the 17/3/2014, the 2nd Respondent filed a replying affidavit whose inport is that the application is hopelesly incompetent and misleading. The defendants filed a Notice of Preliminary objection which I will deal with first.
The gravamenof the submissions by Mr. Nderitu on the Preliminary Objection is that the suit was dismissed with no orders as to costs and upon the ruling, the court became funtus oficio . Moreover that the decision was not positive but negative hence negative decisions cannot be stayed.
Mr. Githinji on his part argued that the objection is misconceived and that the same including the replying affidavit be struck out as the defendants did not obtain the authority to file the same.
In reply Mr. Nderitu correctly submitted that Mr. Githinji had missed the point.
I have considered the application and do find that the applicant seeks to reverse the order of this court made on 21/2/2014. Moreover that the order he seeks to stay did not give any positive direction but was a dismissal. The court technically can't stay a dismissal of a suit as this will amount to the reinstatement of the dismissed suit.
The decision ofE.O. O'KUBASU, E.M. GITHINJI, J.A. ALUOCH JJAin Kileleswa service station Ltd vs Shell Ltd{2008} KLR 55 is relevant where the court held that application for stay pertained to a negative order that was capable of execution by enforcement. The same holding was made in AttorneyGeneral vs LSK & Another (2009) KLR 304
The upshot of the above is that the preliminary objection is upheld and the application dismissed with no order as to costs.
DATED AND SIGNED AT ELDORET THIS........................DAY OF...............2015
A.OMBWAYO
JUDGE
DELIVERED AND SIGNED IN NYERI THIS 27TH DAY OF JANUARY,2015
LUCY WAITHAKA
JUDGE