NDUNGU KINYANJUI v KIBICHOI KUGERIA SERVICES & ANOTHER [2007] KECA 138 (KLR)
The bottom line
#Kenya's Court of Appeal ruled you can only get a stay of execution if there's an actual order to enforce and you've filed a Notice of Appeal against it.
What this practically means
#Executive summary
#Key legal issues
#Whether a dismissal of a suit which makes no positive order can be stayed
A decision that orders no party to do or abstain from anything, or to pay any sum, is incapable of execution and no stay of execution can issue in respect of it.
The High Court had dismissed the applicant's suit and later an application for review, making no positive orders. The Court restated its established jurisprudence that a stay under rule 5(2)(b) presupposes an order capable of enforcement or restraint by injunction. Since the ruling of 9th February 2007 made no such order, there was nothing to stay and the application failed on that basis alone.
Whether the Court could stay the costs order made in the ruling of 23rd September 2004
The Court lacks jurisdiction to interfere with an order against which no Notice of Appeal has been filed; counsel's argument that the earlier decision was adopted in the later ruling was rejected as tenuous.
The applicant's real target was the costs order in the ruling of 23rd September 2004, but no Notice of Appeal was lodged against that decision. A notice of appeal existed only for the ruling of 9th February 2007. The Court held that on that ground alone it had no jurisdiction to interfere with the earlier order, and that the mere allusion to the earlier decision in the later ruling did not amount to its adoption.
Legal principles established
#- In an application under rule 5(2)(b) for stay of execution, where the court whose order is sought to be stayed has not ordered any party to do anything, refrain from doing anything, or pay any sum, there is nothing for the Court of Appeal to enforce or restrain, and no stay can issue.
- The Court of Appeal has no jurisdiction to interfere with, or grant a stay relating to, an order against which no Notice of Appeal has been lodged.
- The institution of an appeal does not operate to suspend or stay execution; a stay may only be ordered where a notice of appeal has been lodged in accordance with rule 74.
Court orders
#- 1.The application for stay of execution is dismissed with costs to the respondents
- On appeal from
- High Court of Kenya, 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
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "NDUNGU KINYANJUI v KIBICHOI KUGERIA SERVICES & ANOTHER [2007] KECA 138 (KLR)", Case Analysis (2007). Civil Appli 79 of 2007 (UR52/2007). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2007/138/eng@2007-11-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.