Kortot & another v Gisore (Civil Application E066 of 2022) [2023] KECA 475 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stay a ruling that dismissed a land adverse-possession claim, confirming you cannot stay an order that merely dismisses a case.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants had an arguable intended appeal
- 2.Whether the intended appeal would be rendered nugatory if stay of execution was not granted
- 3.Whether there is in fact a positive order capable of execution capable of being stayed, given that the originating summons was dismissed
Key legal issues
#Whether the applicants established an arguable appeal
The court found the intended appeal not arguable, noting the applicants admitted the respondent purchased the suit property from their deceased husband in 1998 and that their adverse possession claim had already been dismissed.
A cursory perusal of the pleadings showed no arguable appeal. The applicants admitted the respondent had purchased the suit property from their deceased husband on May 12, 1998, and their originating summons seeking registration as proprietors by adverse possession had been dismissed by Washe J on September 22, 2022. The court was careful not to say more on arguability lest it embarrass the bench eventually seized of the intended appeal.
Whether there was anything capable of being stayed
The dismissal of the originating summons was a negative order incapable of execution; there was nothing to stay.
Relying on Raymond M. Omboga v Austine Pyan Maranga, the court held that an order merely dismissing a suit is a negative order incapable of execution save perhaps for costs. The refusal simply leaves the applicant in the position they were in before coming to court, so questions of substantial loss and nugatory-ness do not arise. What was issued by the court below was in the nature of a negative order.
Whether the intended appeal would be rendered nugatory absent stay
The applicants' own affidavit showed they were not in occupation of the suit property, undermining any claim of nugatory-ness; the appeal would not be rendered nugatory if stay was not granted.
The 1st applicant's supporting affidavit deponed that the applicants had been ploughing, grazing livestock and leasing the suit land, which contradicted counsel's assertion that they were in possession. Ultimately, the court was not satisfied that the intended appeal would be rendered nugatory if stay orders were not issued.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy the twin principles of an arguable appeal and that the appeal would be rendered nugatory if stay is not granted
- A dismissal of a suit or application produces a negative order incapable of execution, and there can be no stay of execution of such an order
Court orders
#- 1.The applicants' motion dated October 17, 2022 is dismissed in its entirety
- 2.Costs of the application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Kilgoris
- Originating summons dated July 1, 2021 (number not stated)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2010
Relief refused
#Stay of execution of the judgment and decree of Washe J dated September 22, 2022 pending the intended appeal
The applicants failed to establish the twin principles of an arguable appeal and that the appeal would be rendered nugatory; the dismissal of the originating summons was a negative order incapable of execution and therefore there was nothing to stay
Costs of the application to be in the appeal
The application was dismissed with costs to the respondent
Costs
The motion is dismissed in its entirety with costs to the respondent.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Firstly, an applicant has to satisfy that he/she has an arguable appeal. However, this is not to say that it must be an appeal that will necessarily succeed, but sufice to state that it is an appeal that is not frivolous and/or idle.
what was issued by the court was in the nature of a negative order incapable of execution and as such there is nothing to stay.
Where there is no positive order made in favour of the respondent which is capable of execution, there can be no stay of execution of such an order
the applicants motion dated October 17, 2022, is without merit and the same is hereby dismissed in its entirety with costs to the respondent.
Issues in the judgment
#Paragraph numbering skips from 13 to 15; there is no paragraph 14 in the judgment as reproduced
The respondent is never named in the judgment text, and the case number of the application before the Court of Appeal is not stated
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kortot & another v Gisore (Civil Application E066 of 2022) [2023] KECA 475 (KLR)", Case Analysis (2023). Not stated in the judgment (motion dated October 17, 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/475/eng@2023-05-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.