Wycliffe Luvembe Shikoto v Elizabeth Achitsa Opati & 3 others
The bottom line
#Kenya's Court of Appeal refused to halt a land ruling, confirming that dismissals without enforceable orders cannot be stayed.
What this practically means
#Executive summary
#Key legal issues
#Jurisdictional basis of the application
The application was brought under the wrong provision, Order 42 Rule 6 of the Civil Procedure Rules, when the correct provision is Rule 5(2)(b) of the Court of Appeal Rules; however, the Court excused the omission because the applicant is a layman acting in person and determined the application on its merits.
The Court agreed with counsel for the respondents that Order 42 Rule 6 is inappropriate for applications of this nature in the Court of Appeal. Notwithstanding the jurisdictional and foundational omission, and in the interest of justice for a pro se lay litigant, the Court discerned the intent of the prayers and entertained the application under Rule 5(2)(b).
Arguability of the intended appeal
The appeal is not arguable. The ELC's determination was confined to jurisdiction and issued no positive orders capable of execution; the allegations concerning decretal sums and loss of property were misconceived and detached from the decision under challenge.
Relying on Trust Bank Limited v. Investec Bank Limited, the Court held that arguability requires more than perceived procedural missteps; the appeal must disclose issues warranting legal interrogation. The ELC merely substituted dismissal with striking out, so the applicant's concerns about deposits, costs and proprietary harm did not meet the threshold.
Nugatory aspect and prejudice
There is no evidence of real or imminent prejudice; no executable order was demonstrated and the apprehension of committal to civil jail lacked a lawful or factual anchor in the decree.
Applying Republic v. Kenya Anti-Corruption Commission, the Court held speculative harm insufficient. The alleged Kshs.250,000 deposit was not shown to be part of the factual matrix before the High Court, and the claim that the suit property's integrity was under threat was unsubstantiated. The dual test for relief under Rule 5(2)(b) was therefore not satisfied.
Stay of a negative decree
The judgment and decree of the ELC affirmed the trial court's finding on jurisdiction and made no positive executable orders; it is a negative decree incapable of being stayed.
The Court adopted the principle in Western College of Arts and Applied Sciences v. Oranga that a negative order, such as an order striking out or dismissing a suit, is incapable of being stayed. Since the ELC substituted dismissal with striking out, there was nothing to execute except costs, and the application necessarily failed.
Legal principles established
#- An application for stay of execution in the Court of Appeal pending appeal must be brought under Rule 5(2)(b) of the Court of Appeal Rules, not Order 42 Rule 6 of the Civil Procedure Rules
- The dual test under Rule 5(2)(b) is arguability of the appeal and that the appeal will be rendered nugatory absent relief
- A negative decree (one dismissing or striking out a suit) is incapable of being stayed
Court orders
#- 1.The Notice of Motion dated 9th December, 2024 is dismissed
- 2.Costs of the application awarded to the respondents
- On appeal from
- Environment & Land Court, Kakamega
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Wycliffe Luvembe Shikoto v Elizabeth Achitsa Opati & 3 others", Case Analysis (2025). Civil Application (Notice of Motion dated 9th December, 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1907/eng@2025-11-07
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.