Rhoda Mongina Ondoro & 2 others v Johnstone Nyanyuki Menge [2020] KEELC 1156 (KLR)
The bottom line
#A Kenyan court refused to protect an appellant's land because a dismissed suit leaves nothing to 'stay' — and temporary injunctions don't extend to appeals.
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 Applicant is entitled to an order of stay of execution or injunction pending appeal
Key legal issues
#Whether a stay of execution can be granted where the decree is a negative order
No; a dismissal of suit with costs yields no positive order capable of execution, so no stay of execution can issue
The court accepted the Respondents' submission that the suit was merely dismissed with costs. Following Marangu Rucha & Another v Attorney General & 10 Others, it is not possible to stay 'execution' or 'implementation' where the action was dismissed. The only remaining enforceable obligation is payment of costs, which is not the subject of a stay of execution in the sense sought by the Applicant.
Whether the court can grant an injunction pending an intended appeal under Order 40 rules 1 and 2 of the Civil Procedure Rules
No; the trial court's temporary injunction power is limited to its original jurisdiction until disposal of the suit, unlike the Court of Appeal's rule 5(2)(b) jurisdiction
Relying on Western College of Arts and Applied Sciences v Oranga & Others, the court held that the High Court has no specific power to issue a temporary injunction in connection with an order for stay of execution of a decree that is the subject of an appeal. Order 40 relief runs only 'until the disposal of the suit or until further orders' and cannot be used to preserve the subject matter pending appeal.
Legal principles established
#- A stay of execution cannot issue in respect of a negative decree (a dismissal of suit) since there is nothing to execute except costs
- The trial court's power to grant temporary injunctions under Order 40 rules 1 and 2 of the Civil Procedure Rules is limited to its original jurisdiction and does not extend to preserving the subject matter of an appeal
Court orders
#- 1.The Notice of Motion dated 16th December 2019 is dismissed with costs to the Respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- Jurisdiction invoked
- Order 40 rules 1 and 2 of the Civil Procedure Rules (inherent motion jurisdiction of the trial court pending intended appeal to the Court of Appeal)
Relief refused
#Stay of execution/implementation of the judgment and decree dated 9th October 2019 pending the intended appeal
The suit was dismissed, so the decree is a negative order; there is nothing to stay except payment of costs
Injunction restraining the Respondents from entering upon or taking possession of the suit property pending appeal
Order 40 rules 1 and 2 empowers the court to grant temporary injunctions only until disposal of the suit, not in connection with an appeal
Order of inhibition over LR. No. GESIMA SETTLEMENT SCHEME/337 and 343 pending appeal
Falls with the application, which was dismissed as lacking merit
Costs
The application is dismissed with costs to the Respondents
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.
In view of the foregoing, I find and hold that the application lacks merit and it is dismissed with costs to the Respondents.
Therefore, there is nothing which can be executed except payment of costs. In the circumstances, an order for stay cannot be granted.
“The High Court has no specific power to issue a temporary injunction in connection with an order for stay of execution of a decree or order which is the subject of an appeal to the High Court”
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Rhoda Mongina Ondoro & 2 others v Johnstone Nyanyuki Menge [2020] KEELC 1156 (KLR)", Case Analysis (2020). Not stated in judgment (Notice of Motion dated 16th December 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2020/1156/eng@2020-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.