Menta Anerisa Pulei & 5 others v Munket Pulei (suing As Personal and Legal Representative of Kasaine Pulei Alias Kasaine Ole Pulei Deceased) & 2 others
The bottom line
#Kenya's Court of Appeal ruled you cannot stay a court order that simply dismissed your application, because a dismissal gives nothing to stay.
What this practically means
#Executive summary
#Key legal issues
#Whether a negative order (a dismissal without positive orders) is capable of being stayed
A dismissal order contains no positive action to be taken; staying it is incompetent and an exercise in futility.
The trial court dismissed the application for review and made no positive orders. Following Western College of Arts and Applied Sciences v EP Oranga, quoted with approval by the Supreme Court in Kenya Tea Growers Association v NSSF, the Court held that an application seeking to stay a negative order is incompetent because there is nothing to stay. This disposed of the application without reaching the twin principles.
Whether the twin principles for stay pending appeal were met
The Court found the intended appeal not arguable and therefore did not address the nugatory limb.
Although the first limb requires an arguable appeal, the Court, on reading the grounds of appeal and rival filings, was not persuaded the appeal was arguable, while expressly leaving the merits to the bench hearing the appeal. Having found the application incompetent, it declined to address the second (nugatory) limb.
Whether an order for maintenance of status quo could issue
No status quo order could issue where the parties disagree on what the status quo is.
The 1st respondent maintained the ELC judgment, which was never appealed, had been implemented by the land registrar. Because the status quo was contested and unclear, the Court declined to speculate and refused the prayer for maintenance of status quo.
Legal principles established
#- An application to stay a negative order is incompetent because there is nothing to stay.
- A stay applicant must show an arguable appeal and that the appeal would be rendered nugatory absent a stay.
Court orders
#- 1.Application dismissed with costs to the 1st respondent
- On appeal from
- Environment and Land Court of Kenya at Kajiado
- ELC Case Number 960 of 2017
- Jurisdiction invoked
- Rules 5(2)(b), 47, 49(5) of the Court of Appeal Rules, 2022; sections 3A and 3B of the Appellate Jurisdiction Act; Article 159 of the Constitution
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Menta Anerisa Pulei & 5 others v Munket Pulei (suing As Personal and Legal Representative of Kasaine Pulei Alias Kasaine Ole Pulei Deceased) & 2 others", Case Analysis (2023). Notice of Motion dated 1st September 2023 (Court of Appeal, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1132/eng@2023-09-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.