[2012] KEHC 4784 (KLR)
The court held that the order striking out the suit for want of jurisdiction was a negative order, as it did not require any party to do or abstain from doing anything. Consequently, there was nothing to stay, and the application for stay of execution was misconceived. The court relied on established legal authority...
Source-derived case information.
- Citation
- [2012] KEHC 4784 (KLR)
- Parties
- Plaintiff: Eliud Maelo Wafula; Defendant: The Minister of Agriculture; Defendant: The Permanent Secretary, Ministry of Agriculture; Defendant: The Director of Agriculture; Defendant: The Chief Executive Officer, Kenya Sugar Board; Defendant: Saul Busolo
- Court
- High Court
- Court Station
- High Court at Bungoma
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 72 of 2011
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- AO Muchelule
- Legal Topics
- Stay of Execution, Jurisdiction, Election Disputes
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Eliud Maelo Wafula
Plaintiff
The Minister of Agriculture
Defendant
The Permanent Secretary, Ministry of Agriculture
Defendant
The Director of Agriculture
Defendant
The Chief Executive Officer, Kenya Sugar Board
Defendant
Saul Busolo
Defendant
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the court can grant a stay of execution where the order sought to be stayed is negative.
- 2 Whether the High Court has jurisdiction to entertain the election dispute under the Sugar Act.
Ratio Decidendi
The court held that the order striking out the suit for want of jurisdiction was a negative order, as it did not require any party to do or abstain from doing anything. Consequently, there was nothing to stay, and the application for stay of execution was misconceived. The court relied on established legal authority that negative orders are not capable of being stayed. The application was therefore dismissed with costs to the respondents.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed with costs.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLICOF KENYA
IN THE HIGH COURT
AT BUNGOMA
CIVIL SUIT NO.72 OF 2011
ELIUD MAELO WAFULA..........................................................PLAINTIFF
VS
THE MINISTER OF
AGRICULTURE...............................................................1ST DEFENDANT
THE PERMANENT SECRETARY
MINISTRY OF AGRICULTURE.....................................2ND DEFENDANT
THE DIRECTOR OF
AGRICULTURE.............................................................3RD DEFENDANT
THE CHIEF EXECUTIVE OFFICER
KENYASUGAR BOARD................................................4TH DEFENDANT
SAUL BUSOLO..............................................................5TH DEFENDANT
RULING
On 12/7/2011 election for grower and miller representatives for Nzoia Sugar Belt Zone to the Kenya Sugar Board were held. The conduct of the election and the result did not go down well with the Plaintiff. He filed this suit before this court to nullify the election and to have the same repeated. Following a preliminary objection, this court found that under section 31 of the Sugar Act no.10 of 2001 the forum for the resolution of the election dispute was the Sugar Arbitration Tribunal. The suit was on 6/3/2012 struck out with costs for want of jurisdiction.
The decision offended the Plaintiff. He has filed an appeal to the Court of Appeal. He now seeks stay of execution of the order of this court pending the hearing and determination of the appeal. He was represented by Mr. Kasamani. The Respondents opposed the application. They were represented by Mr. Ngumbi and Mr. Masinde. I have considered what counsel had to say on the application.
It is quite clear to this court that the order that is sought to be stayed was a negative one. There was nothing that was ordered to be done or not to be done that could be the subject of any stay. The application is to that extend misconceived (Kileleshwa Service Station Ltd v Kenya Shell Ltd [2008] KLR 55). It is dismissed with costs.
Dated and delivered at Bungoma this 21st day of March, 2012.
A.O. MUCHELULE
JUDGE