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Court of AppealDismissedCivil Application No. Nai 79 of 2007 (UR. 52/2007)· [2007] KECA 13 (KLR)

NDUNGU KINYANJUI v KIBICHOI KUGERIA SERVICES & another [2007] KECA 13 (KLR)

Court of Appeal of Kenya
9 November 2007
SBS.E.O. BosireEGE.M. GithinjiJOJ.W. Onyango Otieno
914 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed you can only stay an order that actually commands a party to do, stop, or pay something.

What this practically means

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Executive summary

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This is a ruling of a three-judge bench of the Court of Appeal at Nairobi on a single-judge-application referred to the full Court under rules 5(2)(b), 42 and 47 of the Court of Appeal Rules. Ndungu Kinyanjui sought a stay of execution of the High Court ruling of 9th February 2007 (Aluoch, J.) dismissing his application for review of an earlier order of 23rd September 2004, by which his suit, HCCC No. 849 of 2004, was dismissed as res judicata, statutorily barred and an abuse of process. The respondents, relying on David Thiong'o v. Market Fancy Emporium, argued the order was incapable of being stayed and that the Court lacked jurisdiction over the 2004 order since no notice of appeal was filed against it. The Court unanimously agreed. It reaffirmed the settled rule that where the order sought to be stayed commands no party to do, abstain from doing, or pay anything, there is nothing to enforce or restrain, and no stay can issue. It further held that a stay under rule 5(2)(b) requires a notice of appeal against the specific order; as the notice on record related only to the 9th February 2007 ruling, the Court had no jurisdiction to interfere with the 2004 order, and counsel's 'adoption' argument was rejected as tenuous. The application was dismissed with costs to the respondents. This ruling binds subordinate courts and the High Court on the executability of negative orders in stay applications.

Key legal issues

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01

Whether a dismissal order with no positive directives can be stayed

Holding

An order that directs no party to do anything, abstain from anything, or pay any sum is incapable of execution and no stay can issue.

Reasoning

The Court applied its settled jurisprudence under rule 5(2)(b) that a stay exists to prevent enforcement of an operative order. The 9th February 2007 ruling merely dismissed a review application and made no orders against the applicant; it was therefore a nullity for stay purposes, and the applicant's real grievance lay with the earlier 2004 order against which no appeal was filed.

p. 2
02

Whether the Court could stay the 23rd September 2004 dismissal order

Holding

The Court lacked jurisdiction to stay the 2004 order because no notice of appeal was lodged against it; only the 9th February 2007 ruling was under a notice of appeal.

Reasoning

Rule 5(2)(b) requires a notice of appeal lodged in accordance with rule 74 as a precondition to ordering a stay. The Court noted a notice of appeal existed only for the 9th February 2007 decision. Counsel's argument that the later ruling 'adopted' the earlier decision was rejected as tenuous; adoption could not cure the absence of an appeal against the 2004 order.

p. 2

Legal principles established

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  • Where the order sought to be stayed does not require any party to do anything, refrain from doing anything, or pay any sum, there is nothing capable of being stayed or enforced, and no stay can issue under rule 5(2)(b).
  • A stay under rule 5(2)(b) presupposes a notice of appeal lodged against the very order sought to be stayed; without such notice the Court has no jurisdiction to interfere with that order.

Court orders

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  1. 1.The application for stay of execution is dismissed with costs to the respondents

Authorities

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Legislation

  • Court of Appeal Rulesrule 5(2)(b)
  • Court of Appeal Rulesrule 42
  • Court of Appeal Rulesrule 47
  • Court of Appeal Rulesrule 74
  • Civil Procedure RulesOrder IXB rule 4
  • Civil Procedure RulesOrder IXB rule 7(2)
  • Civil Procedure RulesOrder XLIV
  • Civil Procedure Actsection 8

Cases cited (1)

  • David Thiong'o T/A Welcome General Stores v. Market Fancy Emporium
    Civil Application No. NAI. 47 of 2007
On appeal from
High Court of Kenya at Nairobi
H.C.C.C. No. 849 of 2004
Jurisdiction invoked
Rules 5(2)(b), 42 and 47 of the Court of Appeal Rules (application for stay of execution pending intended appeal)

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, "NDUNGU KINYANJUI v KIBICHOI KUGERIA SERVICES & another [2007] KECA 13 (KLR)", Case Analysis (2007). Civil Application No. Nai 79 of 2007 (UR. 52/2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/13/eng@2007-11-09

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.