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Case Brief · caselaw.co.ke
Court of AppealDismissedNotice of Motion dated 1st September 2023 (Court of Appeal, Nairobi)· [2023] KECA 1132 (KLR)

Menta Anerisa Pulei & 5 others v Munket Pulei (suing As Personal and Legal Representative of Kasaine Pulei Alias Kasaine Ole Pulei Deceased) & 2 others

Court of Appeal of Kenya
22 September 2023
1,646 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~7 min to read original · ~4 min brief

The bottom line

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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

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Executive summary

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The applicants, who were defendants in ELC Case No 960 of 2017 at Kajiado, moved the Court of Appeal under rule 5(2)(b) of the Court of Appeal Rules, 2022 seeking a stay of the ruling of the Environment and Land Court (M. N. Gicheru, J.) dated 15th March 2023 dismissing their application for review of the judgment of 20th December 2021, which had ordered a resurvey and equal re-subdivision of two family land parcels, LR Nos. 347 and 348. The ELC review ruling was a dismissal with no positive orders; the applicants had not appealed against the original judgment. The 1st respondent opposed, arguing the order was negative and thus incapable of being stayed, that the decree had already been implemented, and that the intended appeal was not arguable. The Court held that the twin principles for a stay pending appeal were settled - arguability and nugatory - but first addressed whether the orders were capable of being stayed. Applying Western College of Arts and Applied Sciences v EP Oranga, as approved by the Supreme Court in Kenya Tea Growers Association v NSSF, it held that staying a negative order is incompetent and an exercise in futility. It further declined to order maintenance of status quo because the parties disagreed on what that status quo was, and the Court would not speculate. Although it expressed doubt about the arguability of the appeal, it left the merits to the bench that would hear the appeal and did not address the nugatory limb. The application was dismissed with costs to the 1st respondent.

Key legal issues

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01

Whether a negative order (a dismissal without positive orders) is capable of being stayed

Holding

A dismissal order contains no positive action to be taken; staying it is incompetent and an exercise in futility.

Reasoning

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.

p. 4
02

Whether the twin principles for stay pending appeal were met

Holding

The Court found the intended appeal not arguable and therefore did not address the nugatory limb.

Reasoning

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.

p. 4
03

Whether an order for maintenance of status quo could issue

Holding

No status quo order could issue where the parties disagree on what the status quo is.

Reasoning

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.

p. 4

Legal principles established

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  • 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

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  1. 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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.