[2025] KEELC 781 (KLR)
The court held that a stay of execution cannot be granted against a negative order, such as a dismissal of an appeal, because there is nothing to execute. The court relied on the Court of Appeal decision in Gitundu vs. Wathuku, which established that stay orders are inapplicable where no positive act is required by...
Source-derived case information.
- Citation
- [2025] KEELC 781 (KLR)
- Parties
- Applicant: Benjamin Lemashon Seperiani; Respondent: Daniel Leshan Seitai
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kilgoris
- Jurisdiction
- Kenya
- Case Number
- Land Case Appeal E005 of 2024
- Procedural Posture
- Land Case Appeal / Ruling on Stay of Execution Application Pending Appeal
- Outcome
- Applications for stay of execution dismissed with costs; applicant and his counsel penalized for abuse of process.
- Judges
- MN Mwanyale
- Legal Topics
- Stay of Execution, Negative Orders, Abuse of Process, Appeals, Costs Orders
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Benjamin Lemashon Seperiani
Applicant
Daniel Leshan Seitai
Respondent
Procedural Posture
Land Case Appeal / Ruling on Stay of Execution Application Pending Appeal
Legal Issues
- 1 Whether a stay of execution can issue against a negative order of dismissal.
- 2 Whether the applications for stay of execution pending appeal are merited.
Ratio Decidendi
The court held that a stay of execution cannot be granted against a negative order, such as a dismissal of an appeal, because there is nothing to execute. The court relied on the Court of Appeal decision in Gitundu vs. Wathuku, which established that stay orders are inapplicable where no positive act is required by the judgment or order. The court further found that the applications for stay of execution were unmeritorious and amounted to an abuse of the court process, given that similar applications had already been dismissed and another was pending before the Court of Appeal. Consequently, both applications were dismissed with costs, and the applicant and his counsel were penalized for...
Court Disposition
Applications for stay of execution dismissed with costs; applicant and his counsel penalized for abuse of process.
Orders
- Both applications dated 19.11.2024 and 24.01.2025 are dismissed with costs.
- The applicant shall bear the costs of the applications and the dismissed appeal.
Full Case Text
Judgment text and source record
24 paragraphs
Seperiani v Seitai (Land Case Appeal E005 of 2024) [2025] KEELC 781 (KLR) (20 February 2025) (Ruling)
Neutral citation: [2025] KEELC 781 (KLR)
Republic of Kenya
In the Environment and Land Court at Kilgoris
Land Case Appeal E005 of 2024
MN Mwanyale, J
February 20, 2025
Between
Benjamin Lemashon Seperiani
Applicant
and
Daniel Leshan Seitai
Respondent
Ruling
1. On 18. 11. 2024, this court (Washe J) dismissed this appeal against the Judgment of Hon. C.W Waswa, Senior Resident Magistrate delivered on 11. 12. 2003 in Kilgoris CME and L No. E001 of 2020.
2. Aggrieved by the said dismissal, the Appellant filed an appeal before the Court of Appeal and the application dated 19. 11. 2024 seeking stay of execution of the judgment and orders this court (Washe J) delivered on 18. 1.2024; together with all consequential orders and in particular order No. 8 (b), (c) and (d) of the Honourable Trial Magistrate judgment delivered on 29th February 2004 in Kilgoris Environment and Land.
3. This Ruling is in respect of that Application and shall also dispose off another application dated 24th January 2025, similarly seeking stay of execution orders seeing that prayer 3 of the application dated 24th January 2025 seeks stay of execution pending the hearing and determination of the intended appeal to the court of appeal which prayer is similar to prayer 3 of the application subject.
4. Parties were directed to file written submissions on the application, which they did and the court having considered the submissions, frames the determination as follows: -i.Whether or not the application is merited?
Analysis and Determination 5. The appeal against decision of Hon. C.W Waswa SRM was dismissed. A dismissal is a negative order but can a stay of execution issue against a negative order?
6. This question arose and was determined by the Court of Appeal In the case of Gitundu vs. Wathuku Civil Application (E024 OF 2021) 2022 KELA KLR 26 August 2022 where at paragraph 10 the learned Judges stated as follows: -“Additionally, even if he had the requisite jurisdiction, this court has said time without number that stay orders cannot issue in respect of negative orders, where the court has not ordered any of the parties to perform any task.”
7. In view of the said legal position, the Application before court lacks merit and both Applications dated 19. 11. 2024 and 25. 01. 2025 are both dismissed with costs.
8. For avoidance of doubt, the appeal against the judgment and decree of Hon. C.W Waswa having been dismissed, the said judgment is valid and the decree holder is at liberty to execute the same if he so desires. The court further notes that the Appellant Benjamin Lemashon Seperiani through his Counsel Mr. Bigogo has filed three stay of execution applications two of which have been dismissed by this ruling and one is pending before the Court of Appeal and expresses its disappointment with the conduct of the litigant and his counsel on record as filing of numerous applications seeking similar reliefs is an abuse of the court process.
9. The Appellant / Applicant shall bear the cost of this application and the dismissed appeal in any event as already ordered while Mr. Bigogo counsel on record shall bear the costs of the application dated 24th January 2025 personally and/ or his firm.
DATED AND DELIVERED AT KILGORIS THIS 20TH DAY FEBRUARY OF 2025HON. M.N. MWANYALEJUDGEIn the presence of:C/A Emmanuel/SylviaMr. Bigogo for the Appellant/ApplicantMr. Ochwangi for the Respondent