[2020] KECA 250 (KLR)
The Court found that while the applicant had established the existence of an arguable appeal, it failed to demonstrate that the intended appeal would be rendered nugatory if stay was not granted. This was because the order sought to be stayed was a negative order, merely restraining the applicant from conducting...
Source-derived case information.
- Citation
- [2020] KECA 250 (KLR)
- Parties
- Applicant: The Registered Trustees of the Agricultural Society of Kenya (ASK); Respondent: Lake Basin Development Authority
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Application 60 of 2020
- Procedural Posture
- Civil Application / Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed
- Judges
- RN Nambuye, DK Musinga, F Sichale
- Legal Topics
- Stay of Execution, Mandatory Injunctions, Interlocutory Orders, Title to Land
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
The Registered Trustees of the Agricultural Society of Kenya (ASK)
Applicant
Lake Basin Development Authority
Respondent
Procedural Posture
Civil Application / Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the applicant is entitled to an order of stay of execution of the High Court's ruling pending appeal.
- 2 Whether the mandatory injunction issued at the interlocutory stage was proper.
- 3 Whether the intended appeal would be rendered nugatory if stay is not granted.
Ratio Decidendi
The Court found that while the applicant had established the existence of an arguable appeal, it failed to demonstrate that the intended appeal would be rendered nugatory if stay was not granted. This was because the order sought to be stayed was a negative order, merely restraining the applicant from conducting activities on the suit property, and such orders are generally not capable of being stayed. The Court applied established principles under Rule 5(2)(b) and relevant case law, concluding that the threshold for granting a stay had not been met.
Court Disposition
application dismissed
Orders
- The Notice of Motion dated 25th May, 2020 is disallowed.
- The applicant shall bear the costs of this application.
Full Case Text
Judgment text and source record
37 paragraphs
IN THE COURT OF APPEAL
AT KISUMU
[CORAM: NAMBUYE, MUSINGA & SICHALE, JJ.A.]
CIVIL APPLICATION NO. 60 OF 2020
BETWEEN
THE REGISTERED TRUSTEES OF THE AGRICULTURAL
SOCIETY OF KENYA (ASK)......................................APPLICANT
AND
LAKE BASIN DEVELOPMENT
AUTHORITY.............................................................RESPONDENT
(Being an appeal from the ruling of the High Court of Kenya at
Kisumu (A.O. Ombwayo, J) dated 29th April, 2020 in ELC No. 49 of 2019)
***********************
RULING OF THE COURT
1. UPONperusing the Notice of Motion dated25thMay, 2020by the applicant, said to be brought under Section 1A and 1B of the Civil Procedure Act, Rule 5(2) of this Court’s Ruleswhere the applicant seeks an order of stay of execution of the ruling delivered on 29th April, 2020 by Ombwayo, J.inELC No. 49 of 2020pending the hearing and determination of the intended appeal; and
2. UPONperusing the affidavit ofBATRAM MUTHUKA, the Chief Executive Officer of the applicant, sworn on 25th May, 2020 in support of the application thereof; and
3. UPONperusing the affidavit ofDR. RAYMOND OMOLO, the Managing Director of the respondent, sworn on 7th September, 2020; and
4. UPONperusing the applicant’s submissions and its digest of authorities both dated 15th September, 2020 wherein it is submitted, inter alia, that both the applicant and the respondent are the allottees of the land, the subject of the dispute; that the trial court erred in granting a mandatory injunction at an interlocutory stage; that the applicant will suffer
“significant loss”, absent stay; and
5. UPONperusing the respondent’s submissions dated7thSeptember, 2020in which it is submitted, inter alia, that the respondent has a superior title to the suit property; that an order of mandatory injunction was appropriately issued in the circumstances of the case; and
6. HAVINGconsidered the principles that guide this Court in the determination of Rule 5(2) (b) applications as enunciated in Stanley Kang’ethe Kinyanjui vs. Tony Ketter & Others [2013] eKLR; and noting that the applicant has established that it has an arguable appeal but has failed to establish that the intended appeal will be rendered nugatory given the fact that the order sought to be stayed is a negative order directing the applicant “ … to stop any activities ...” on the suit property. ( See Kenya Commercial Bank Limited vs. Tamarind Meadows Limited & 7 others [2016] eKLR );and having reached this conclusion, we make the following orders:
(i) The Notice of Motion dated 25th May, 2020 is disallowed.
(ii) The applicant shall bear the costs of this application.
Dated and Delivered at Nairobi this 23rdDay of October, 2020.
R. N. NAMBUYE
.....................................
JUDGE OF APPEAL
D.K. MUSINGA
.....................................
JUDGE OF APPEAL
F. SICHALE
.....................................
JUDGE OF APPEAL
I certify that this is a true
copy of the original.
Signed
DEPUTY REGISTRAR