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Court of AppealDismissedCivil Application No. Nai. 229 of 2015 (UR 189/2015)

Republic v Kajiado North District Land Registrar & The Land District Registrar Kajiado & 2 others [2016] KECA 300 (KLR)

Court of Appeal
29 July 2016
AVAlnashir VisramPhilomena Mbete MwiluP. M. MwiluFAF. Azangalala
1,344 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed you cannot get a stay of a dismissal order—there is simply nothing to execute.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Nairobi (Visram, Mwilu and Azangalala, JJ.A) delivered on 29th July 2016 on an application under Rules 5(2)(b), 41 and 47 of the Court of Appeal Rules seeking stay of execution of the High Court ruling of 2nd June 2015 (Mutende, J., in H.C. Misc. Appl. No. 285 of 2011) and an injunction pending an intended appeal. Although titled in the name of the State, the application was actually filed by Simon Salaon Pertet, who claimed the suit property (L.R. No. Ngong/Block/2/683 Plot No. 131) had been allocated to him in 1992 but was also allocated to one Grace Wanjira. His judicial review application had been struck out on 27th January 2015 for not being brought in the name of the State, and his subsequent review application seeking to amend and reinstate it was dismissed on 2nd June 2015. The Court of Appeal held that a stay cannot issue in respect of a negative order - a dismissal directs no party to do or refrain from doing anything, so there is nothing to execute - relying on Mwambeja Ranching, Western College v Oranga and Devani v Ngindari. It was also doubtful the appeal was arguable, since no error apparent on the face of the record was demonstrated, and the applicant failed to show the appeal would be rendered nugatory without the injunction, particularly as he had not appealed the January 2015 judgment. The application was dismissed with costs. The decision below was not disturbed on the merits; the Court simply declined interim relief.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether, unless the orders sought are granted, the appeal would be rendered nugatory
  3. 3.Whether a stay of execution can issue in respect of an order dismissing a review application (a negative order)

Key legal issues

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01

Whether a dismissal of a review application is capable of being stayed

Holding

No; a stay cannot lie in respect of a negative order of dismissal, since there is nothing to execute.

Reasoning

Following Western College of Arts & Applied Sciences v Oranga and Devani v Joseph Ngindari, the court held that a ruling dismissing a review application directs no party to do or abstain from doing anything or to pay any sum. Granting the stay would only have the indirect effect of reviving the dismissed application, which the Court cannot do at that stage.

p. 3
02

Whether the intended appeal was arguable and its substratum would be lost without the orders

Holding

The Court expressed doubt as to arguability and found no nugatory aspect had been demonstrated.

Reasoning

The applicant sought to amend a substantive application already struck out via a review application anchored on error apparent on the face of the record, yet no such error was demonstrated. Further, the applicant had not appealed the 27th January 2015 judgment striking out the substantive judicial review application, so the injunction would not preserve the appeal.

p. 3

Legal principles established

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  • The Court of Appeal cannot grant a stay of execution of a negative order, that is, an order of dismissal which does not direct any party to do or refrain from doing anything.
  • An applicant under Rule 5(2)(b) must establish the twin principles that the appeal is arguable and that unless the orders sought are granted the appeal will be rendered nugatory.

Court orders

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  1. 1.The application dated and filed under Rules 5(2)(b), 41 & 47 of the Court of Appeal Rules seeking stay of execution and injunction pending intended appeal is dismissed
  2. 2.Costs of the application awarded to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

AV
majority
Philomena Mbete Mwilu
P. M. MwiluJA
Currently serving
majority
FA
majority
On appeal from
High Court of Kenya at Machakos
H.C. Misc. Appl. No. 285 of 2011
Jurisdiction invoked
Rules 5(2)(b), 41 & 47 of the Court of Appeal Rules (application for stay of execution and injunction pending intended appeal)

Relief refused

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Stay of execution of the ruling dated 2nd June 2015 dismissing the review application

The order sought to be stayed was a negative order (dismissal) incapable of execution

p. 3

Injunction restraining the respondents from disposing of, transferring or interfering with L.R. No. Ngong/Block/2/683 Plot No. 131

The applicant failed to demonstrate that the intended appeal would be rendered nugatory without the injunction

p. 3

Costs

The application is dismissed with costs to the respondents.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

The one main reason that militates against its success is that it is seeking an order to stay the execution of a negative order.
p. 2Stay of negative orders
It is trite that in an application under Rule 5 (2) (b) of the Rules, the applicant ought to establish two twin principles, namely, that the appeal is arguable and that unless the orders sought are granted the appeal will be rendered nugatory.
p. 2Rule 5(2)(b) twin principles
The totality of the foregoing is that we find that the application lacks merit and is hereby dismissed with costs.
p. 3Final orders / disposition

Issues in the judgment

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minor

The application is titled as brought by the State (Republic) but was in fact filed by a private individual, Simon Salaon Pertet; the coram and title do not reflect the actual applicant.

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (2)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Republic v Kajiado North District Land Registrar & The Land District Registrar Kajiado & 2 others [2016] KECA 300 (KLR)", Case Analysis (2016). Civil Application No. Nai. 229 of 2015 (UR 189/2015). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2016/300/eng@2016-07-29

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.