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Court of AppealDismissedCivil Application No. Nyeri 16 of 2016· [2017] KECA 749 (KLR)

Nairobikiru Line Services Limited v Sub-County of Othaya, Sub-County Administrator & Mawat Nissan Sacco

Court of Appeal
1 March 2017
PWP. N. WakiRNR. N. NambuyeFSF. Sichale
1,665 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed you cannot appeal-stay a dismissal — if a court dismissed your case, there is simply nothing to stay.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nyeri (Waki, Nambuye and Sichale, JJ.A) on a Notice of Motion dated 11th April 2016 brought under Rule 5(2)(b) of the Court of Appeal Rules by Nairobikiru Line Services Limited. The applicant sought an injunction and stay of a ruling of the High Court at Nyeri (Mativo, J) dated 9th March 2016 in Civil Suit No. 11 of 2014, which had dismissed the applicant's application for injunctive relief restraining the respondents from harassing, intimidating or impounding its vehicles at the Othaya Matatu/Bus Terminus pending the intended appeal. The 1st and 2nd respondents did not appear despite service; the 3rd respondent, Mawat Nissan Sacco, opposed, arguing there was no positive order capable of enforcement and that the twin principles of an arguable appeal and nugatory-ness were not met. The Court applied the settled Rule 5(2)(b) principles from Multimedia University v Naituli and Stanley Kangethe Kinyanjui v Tony Ketter, then addressed the threshold question of whether a negative order can be stayed. Relying on Western College of Arts & Applied Sciences v Oranga and Devani v Ngindari, it held that a dismissal is a negative order incapable of execution or enforcement, and that granting a stay would impermissibly revive the dismissed application. The application was dismissed with costs to the 3rd respondent. The decision binds subordinate courts and the High Court on the negative-order principle.

Key legal issues

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01

Whether a negative order (dismissal) is capable of being stayed under Rule 5(2)(b)

Holding

A dismissal is a negative order that cannot be executed or enforced; a stay application in respect of it is unmerited.

Reasoning

Following Western College v Oranga and Devani v Ngindari, the Court held that where the High Court has merely dismissed a suit or motion without ordering any party to do or refrain from doing anything, the only executable element is costs. Granting a stay would indirectly revive the dismissed application, which the Court cannot undo at the interlocutory stage under Rule 5(2)(b); that can only occur after hearing the appeal.

p. 3
02

Twin principles for relief under Rule 5(2)(b)

Holding

An applicant must satisfy both that the appeal is arguable and that it would be rendered nugatory absent the interim orders.

Reasoning

The Court restated the settled principles from Multimedia University v Naituli and Stanley Kangethe Kinyanjui v Tony Ketter: the jurisdiction is original and discretionary, a single bona fide arguable ground suffices, the applicant must satisfy both twin principles, and the Court must not make definitive findings of fact or law at that stage.

p. 3

Legal principles established

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  • A dismissal of a suit or application is a negative order incapable of being stayed or enforced; there is nothing to stay.
  • Granting a stay of a dismissal order would amount to reviving the dismissed application, which the Court cannot do under Rule 5(2)(b).

Court orders

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  1. 1.The application for stay is dismissed with costs to the 3rd respondent

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)
  • Civil Procedure RulesOrder 53

Cases cited (5)

  • Multimedia University & Another v Professor Gitile N. Naituli
    (2014) eKLR

    Restatement of principles governing Rule 5(2)(b) applications

  • Stanley Kangethe Kinyanjui v Tony Ketter & Others
    [2013] eKLR

    Summary of the twin principles for stay/injunction under Rule 5(2)(b)

  • Western College of Arts & Applied Sciences v Oranga & Others
    [1976] KLR 63

    A dismissed suit is a negative order; nothing to stay

  • Devani and 4 others v Joseph Ngindari
    Civil Application No. Nai 136 of 2004 (unreported)

    Stay of a dismissal order would impermissibly revive the dismissed application

  • Moraa Ndege v Moenga Moenga
    Kisumu Court of Appeal Civil Application No. 116 of 2011 [2012] eKLR

    No positive order capable of enforcement warrants stay (relied on by 3rd respondent)

On appeal from
High Court of Kenya at Nyeri
Civil Suit No. 11 of 2014
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Nairobikiru Line Services Limited v Sub-County of Othaya, Sub-County Administrator & Mawat Nissan Sacco", Case Analysis (2017). Civil Application No. Nyeri 16 of 2016. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/749/eng@2017-03-01

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