Peris Wakiuru Gaita v Grace Wanjiru Mbugua [2010] KECA 272 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop auction of attached household goods, holding that a stay cannot be granted against a dismissal, which is a 'negative order.'
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 satisfied the twin conditions for relief under rule 5(2)(b): an arguable appeal and that the appeal would be rendered nugatory without the order sought
- 2.Whether a stay can issue against an order dismissing objection proceedings, i.e. whether such a dismissal is a 'negative order'
- 3.Whether the Court could grant relief other than that specifically prayed for in the motion
Key legal issues
#Test for relief under rule 5(2)(b)
The applicant must satisfy both the arguability and nugatory-ness conditions; satisfying one alone is insufficient.
The court restated the settled test: the appeal must be arguable and, if successful, rendered nugatory absent the stay or injunction. Both conditions must be met. Although Nyamu, JA found the grounds arguable, the majority disposed of the application on the nature of the order sought.
Whether a stay lies against a negative order
An order dismissing objection proceedings is a negative order; stay is not grantable in respect of it.
The majority reasoned that a stay presupposes an order requiring a party to do or refrain from doing something. A dismissal is negative and commands nothing, so there is nothing to stay. The respondent's counsel relied on a line of this Court's decisions to that effect, which the majority adopted.
Whether the court could grant a stay of the decree although not prayed for
No: the court is confined to the prayers in the motion and cannot grant unclaimed relief.
The majority noted the applicant had not prayed for a stay of the decree or an injunction. Although the court might, under the overriding objective in sections 3A and 3B of the Appellate Jurisdiction Act, have considered such relief had it been sought, granting unprayed relief would amount to descending into the arena of litigation.
Application of the overriding objective to rule 5(2)(b) applications (dissent)
Nyamu, JA dissenting, held that the overriding objective obliges the court to design just orders even in seemingly novel situations, and would have stayed the sale of the attached goods pending appeal.
Nyamu, JA held the facts novel because the applicant was an objector, not the judgment debtor, the goods' value was a drop in the ocean against the Kshs.7 million debt, the respondent had not demonstrated ability to refund, and the objector would suffer greater hardship. He treated the O2 principle as a duty, not a discretion, and did not consider the order 'negative' in the circumstances.
Legal principles established
#- An applicant under rule 5(2)(b) must satisfy both limbs: that the appeal or intended appeal is arguable, and that the appeal would be rendered nugatory if the stay or injunction is not granted
- A stay cannot issue against a negative order, such as an order dismissing an application or objection proceedings
- A party is bound by the prayers of her motion and the court cannot grant relief not sought without descending into the arena
Court orders
#- 1.Application dated 13th April 2010 and filed on 14th April 2010 dismissed
- 2.Costs of the application to the respondent
The bench
#Judges wrote separately. A dissent does not bind; a concurrence may narrow the ratio.
Wrote the judgment
Held that under rule 5(2)(b) an applicant must show both an arguable appeal and that the appeal would be rendered nugatory. Because the order dismissing objection proceedings was a negative order, no stay could issue, and a party is bound by the prayers of her motion; dismissed the application with costs to the respondent.
In the circumstances I would dismiss the application dated 13th April, 2010 and filed in this Court on 14th April, 2010, with costs to the respondent.p. 2
Wrote the judgment
Concurred entirely with Bosire, JA.
I have had the advantage of reading the ruling of Bosire, J.A. in draft. I agree with it entirely and I have nothing useful to add.p. 3
Wrote the judgment
Dissented: applying the overriding objective under section 3A of the Appellate Jurisdiction Act, would have granted a stay preventing sale of the attached goods pending appeal, holding the order dismissible of objection proceedings was not 'negative' in the circumstances, and made no order as to costs.
In the circumstances, I would Order that no sale of the contested goods should take place pending the determination of the appeal. In the circumstances, I would make no order as to costs.p. 6
- On appeal from
- High Court of Kenya at Nairobi
- H.C.C.C. No. 1108 of 2005
- Jurisdiction invoked
- Rules 5(2)(b) and 42 of the Court of Appeal Rules; sections 3A and 3B of the Appellate Jurisdiction Act (overriding objective)
Relief refused
#Stay of execution of the order dismissing the applicant's objection proceedings
The dismissal of objection proceedings is a negative order against which a stay is not practicable, and the applicant was bound by the prayers of her motion
Costs
Costs of the application to the respondent (majority order of Bosire and Githinji, JJA)
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 the circumstances I would dismiss the application dated 13th April, 2010 and filed in this Court on 14th April, 2010, with costs to the respondent. As Githinji J.A also agrees it is so ordered.
the applicant must show that his appeal or intended appeal is not only arguable, but also that unless he is granted an injunction or stay as the case might be, his appeal on intended appeal if successful shall be rendered nugatory
A party is bound by the prayers of her motion and the court cannot properly grant any other order without being seen as having descended into the arena of litigation.
A stay can only issue where practicable. On the facts and circumstances of this case an order of stay is not grantable.
Issues in the judgment
#The judgment as provided contains no list of named authorities; Nyamu, JA's reference to 'a line of this Court's decisions' and 'a past decision' does not name any case, and Gaturu's reliance on 'the strength of a line of this Court's decisions' likewise names none, so casesCited cannot be populated.
The appeal number is inconsistently stated within the judgment: Nyamu, JA records the filed appeal as 'Civil Appeal No. 316 of 2005' although the notice of appeal was filed in 2009, suggesting a typographical error for 2009.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Peris Wakiuru Gaita v Grace Wanjiru Mbugua [2010] KECA 272 (KLR)", Case Analysis (2010). Civil Application No. NAI. 81 of 2010 (UR. 58/2010). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2010/272/eng@2010-05-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.