[2023] KEELC 19059 (KLR)
The court found that the order sought to be stayed was a dismissal of the applicant's suit, which constitutes a negative order. Such an order does not require any party to do or refrain from doing anything and is therefore incapable of execution. The court relied on established case law holding that only positive...
Source-derived case information.
- Citation
- [2023] KEELC 19059 (KLR)
- Parties
- Appellant: Marcela Jepkoros Yego; Respondent: Paul Kemei; Respondent: District Land Registrar Nandi
- Court
- Environment and Land Court
- Court Station
- Environment and Land Court at Kapsabet
- Jurisdiction
- Kenya
- Case Number
- Environment and Land Appeal E004 of 2023
- Procedural Posture
- Environment and Land Appeal / Ruling on Application for Stay of Execution Pending Appeal
- Outcome
- application dismissed with costs
- Judges
- MN Mwanyale
- Legal Topics
- Stay of Execution, Negative Orders, Appeals Process, Dismissal of Suit
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Marcela Jepkoros Yego
Appellant
Paul Kemei
Respondent
District Land Registrar Nandi
Respondent
Procedural Posture
Environment and Land Appeal / Ruling on Application for Stay of Execution Pending Appeal
Legal Issues
- 1 Whether the court can grant a stay of execution of a negative order (dismissal) pending appeal.
- 2 Whether the applicant has satisfied the conditions for grant of stay of execution.
Ratio Decidendi
The court found that the order sought to be stayed was a dismissal of the applicant's suit, which constitutes a negative order. Such an order does not require any party to do or refrain from doing anything and is therefore incapable of execution. The court relied on established case law holding that only positive orders capable of execution can be stayed. As there was no positive order by the trial court that could be stayed, the application for stay of execution was dismissed with costs to the respondent.
Court Disposition
application dismissed with costs
Orders
- The application for stay of execution is dismissed with costs to the respondents.
Full Case Text
Judgment text and source record
28 paragraphs
Yego v Kemei & another (Environment and Land Appeal E004 of 2023) [2023] KEELC 19059 (KLR) (27 July 2023) (Ruling)
Neutral citation: [2023] KEELC 19059 (KLR)
Republic of Kenya
In the Environment and Land Court at Kapsabet
Environment and Land Appeal E004 of 2023
MN Mwanyale, J
July 27, 2023
Between
Marcela Jepkoros Yego
Appellant
and
Paul Kemei
1st Respondent
District Land Registrar Nandi
2nd Respondent
Ruling
1. Before me for determination is the Notice of Motion dated May 9, 2023 seeking for the following orders;a.Spentb.Spentc.That, this Honourable Court be pleased to grant a stay of execution of the judgment and decree in Kapsabet CMELC No 32 of 2019 Marcela Jepkoros Yego v Paul Kemei and Another delivered and issued on the February 15, 2023 pending the hearing and determination of this appeal.d.That, the costs of this application be provided for.
2. The application is premised on the 12 grounds enlisted therein. It is supported by the Affidavit of Marcela Jepkoros Yego. The Applicant deponed that on February 15, 2023 the Trial Court delivered judgment dismissing the Applicant’s suit with costs to the Respondent. Dissatisfied with the said judgement the Applicant filed the present appeal which has high chances of success.
3. The 1st Respondent opposed the application vide Replying Affidavit dated June 5, 2023. He contended that the Applicant had failed to demonstrate the conditions necessary to warrant grant of the orders sought. He urged this Court to dismiss the application with costs.
4. The application was canvassed via written submissions. Both parties filed their respective submissions which this Court has taken into consideration.
Analysis And Determination: - 5. I have considered the application as well as submissions by parties, the only issue arising for determination is whether the Applicant is entitled to stay orders sought pending appeal.
6. In this application, the Applicant is seeking to stay a dismissal order by the Trial Court. This order is in nature a negative order incapable of execution.
7. Certainly, this Court cannot stay an action unless there exists a positive order which if executed will result in a loss to the other party. This Court cannot stay a negative order of dismissal. The Court of Appeal took a similar view in the case ofKenya Commercial Bank Limited v Tamarina Meadows Limited & 7 others [2016] eKLR where the Learned Judges states as follows; -“16. In Kanwal Sarjit Singh Dhiman v Kehavji Juaraj Shah [2008] eKLR, the Court of Appeal while dealing with a similar application for stay of a negative order, held as follows; -
“The 2nd prayer in the application is for stay (of execution) of the order of the superior Court made on December 18, 2006. The order of December 18, 2006 merely dismissed the application for setting aside the judgment with costs. By the order, the superior Court did not order any of the parties to do anything or refrain from doing anything or to pay any sum. It was thus, a negative order which is incapable of execution…”
8. A similar position was held in the case ofGitundu v Wathuku[2022] eKLR by the Court of Appeal.
9. In the premises, it is clear that there is no order by the Trial Court, which thus Court can stay. The application is hereby dismissed with costs.
10. Orders accordingly.
DATED AND DELIVERED AT KAPSABET THIS 27TH DAY OF JULY 2023. HON. M. N. MWANYALE,JUDGE.In the presence of;1. Mr. Korir holding brief for Ms. Kipseei for the Applicant2. Mr. Tallam for the 1st Respondent.