[2011] KEHC 2361 (KLR)
The court found that the order sought to be stayed was a negative order, specifically the dismissal of an application for injunction, which is not capable of execution. As such, there is nothing to stay, and the application for stay of execution is misconceived. The court relied on established case law holding that...
Source-derived case information.
- Citation
- [2011] KEHC 2361 (KLR)
- Parties
- Applicant: Mohamud Mohamed Mohamud; Respondent: Athi Water Services Board
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Environment & Land Case 658 of 2009
- Procedural Posture
- Stay Application / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed
- Legal Topics
- Stay of Execution, Injunctions, Negative Orders, Appeals, Substantial Loss, Security for Stay
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Mohamud Mohamed Mohamud
Applicant
Athi Water Services Board
Respondent
Procedural Posture
Stay Application / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to a stay of execution pending appeal where the order sought to be stayed is negative in nature.
- 2 Whether the conditions for granting a stay of execution under Order 42 rule 6 of the Civil Procedure Rules have been satisfied.
Ratio Decidendi
The court found that the order sought to be stayed was a negative order, specifically the dismissal of an application for injunction, which is not capable of execution. As such, there is nothing to stay, and the application for stay of execution is misconceived. The court relied on established case law holding that only positive orders capable of execution can be stayed. Consequently, the application for stay was dismissed as it did not meet the threshold for grant of such orders under the Civil Procedure Rules and relevant judicial precedents.
Court Disposition
application dismissed
Orders
- The motion dated 10th December 2010 is dismissed.
Full Case Text
Judgment text and source record
14 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
ELC NO. 658 OF 2009
MOHAMUD MOHAMED MOHAMUD……......PLAINTIFF/APPLICANT
V E R S U S
ATHI WATER SERVICES BOARD …….DEFENDANT/RESPONDENT
R U L I N G
The Plaintiff has filed a Notice of Appeal in the Court of Appeal where he seeks to appeal against the ruling of this Court delivered on 8th December 2010 in which this Court dismissed with costs his application for injunction pending the hearing and determination of the suit between him and the Defendant. He has now applied under Order 42 rule 6 of the Civil Procedure Rules and sections 1A, 1B and 3A of the Civil Procedure Act for stay of the ruling pending the appeal. The application was not defended.
This court’s discretion in an application for stay of execution is fettered by three conditions: the applicant has to show he will suffer substantial loss; he has brought the application without unreasonable delay; and, he has furnished security (Carter And Sons Ltd –Vs- Deposit Protection Fund Board And Others), Civil Appeal No. 291 of 1997. However, this court declined to grant the orders of injunction. This was a negative order, incapable of execution, and therefore incapable of stay (Samuel Maina Njoroge –Vs- Land Disputes Tribunal Ruiru And Others, Civil Application No. 78 of 2010 at Nairobi). In Venture Capital And Credit Ltd –Vs- Consolidated Bank of Kenya Ltd, Civil Application No. 349 of 2003 at Nairobi, the Court of Appeal held that where there is no positive order made in favour of the Respondent which is capable of execution the application for stay of the ruling is misconceived.
Accordingly, I dismiss the motion dated 10th December 2010.
DATED AND DELIVERED AT NAIROBI
THIS 9TH DAY OF MARCH 2011
A.O. MUCHELULE
J U D G E