Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
ELCDismissedNot stated in judgment (Notice of Motion dated 16th December 2019)

Rhoda Mongina Ondoro & 2 others v Johnstone Nyanyuki Menge [2020] KEELC 1156 (KLR)

Environment and Land Court
28 July 2020
1,440 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

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

#
By a Notice of Motion dated 16th December 2019, the Applicant, Johnstone Nyanyuki Menge, sought orders of stay of execution and/or implementation of the judgment and decree of 9th October 2019 (delivered 23rd October 2019), an injunction restraining the Respondents from entering upon or taking possession of portions measuring 12 acres and 2 acres in LR. No. Gesima Settlement Scheme/337 and 343, and an inhibition against dealings over those parcels, pending the hearing and determination of his intended appeal to the Court of Appeal. He asserted he had filed a Notice of Appeal, that the Respondents had begun fencing the developed portions where he plucked tea, and that his appeal would be rendered nugatory and he would suffer substantial loss. The 1st Respondent, Rhoda Mongina Ondoro, opposed, contending the suit was dismissed with costs, a negative order with nothing to stay, and that no arguable appeal on adverse possession was demonstrated. The court framed one issue: whether the Applicant was entitled to a stay of execution or injunction pending appeal. It held there was nothing to execute since the suit was merely dismissed with costs, and that under Order 40 rules 1 and 2 of the Civil Procedure Rules the court's temporary injunction power is confined to its original jurisdiction and cannot be used to preserve the subject matter of an appeal. The application was dismissed with costs to the Respondents.

Questions the Court framed

#

The issues the Court set itself to decide, in its own words.

  1. 1.Whether the Applicant is entitled to an order of stay of execution or injunction pending appeal

Key legal issues

#
01

Whether a stay of execution can be granted where the decree is a negative order

Holding

No; a dismissal of suit with costs yields no positive order capable of execution, so no stay of execution can issue

Reasoning

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.

p. 2
02

Whether the court can grant an injunction pending an intended appeal under Order 40 rules 1 and 2 of the Civil Procedure Rules

Holding

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

Reasoning

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.

p. 2

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. 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.

majority

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

p. 2

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

p. 2

Order of inhibition over LR. No. GESIMA SETTLEMENT SCHEME/337 and 343 pending appeal

Falls with the application, which was dismissed as lacking merit

p. 2

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.
p. 2Final orders - dismissal of the application with costs
Therefore, there is nothing which can be executed except payment of costs. In the circumstances, an order for stay cannot be granted.
p. 2No stay of a negative decree
“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”
p. 2Limits of Order 40 injunction power pending appeal

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.