Masai & another v Masai & another (Civil Application 148 of 2020) [2021] KECA 170 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stay a judge's ruling because a dismissal is a 'negative order' that cannot be stayed — nothing existed to suspend.
What this practically means
#Executive summary
#Key legal issues
#Whether the intended appeal is arguable
The intended appeal was arguable, as the ownership of the suit property raised a bona fide arguable ground deserving consideration, without making final findings of fact or law.
The Court applied the settled test that an arguable appeal need not necessarily succeed; it suffices that it is not frivolous and deserves full argument. It found the question of ownership of the suit property arguable but expressly refrained from definitive findings lest it embarrass the bench hearing the main appeal. The first limb of the Rule 5(2)(b) test was therefore satisfied.
Whether the intended appeal would be rendered nugatory if stay is not granted
The nugatory limb failed because the impugned ruling was a negative order dismissing a review application, leaving nothing capable of being stayed.
Relying on Trust Bank v Investech, Stanley Kang'ethe Kinyanjui v Tony Ketter and Raphael Kakene Muloki, the Court held that nugatory analysis requires consideration of whether what is sought to be stayed is reversible. Since the learned Judge merely dismissed the applicants' application to review his earlier ruling of 28th July 2020, there was no positive order capable of execution and hence nothing to stay. Both limbs being required, the application collapsed.
Legal principles established
#- An applicant under Rule 5(2)(b) must establish both that the appeal or intended appeal is arguable and that it will be rendered nugatory if stay is not granted; failure on either limb is fatal.
- An order dismissing an application is a negative order incapable of execution and incapable of stay; there can be no stay of execution where there is no positive order in favour of the respondent capable of execution.
Court orders
#- 1.The application dated 9th December, 2020 is dismissed with costs to the 1st respondent
- On appeal from
- Environment and Land Court
- Kitale ELC Case No. 31 of 2020
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Masai & another v Masai & another (Civil Application 148 of 2020) [2021] KECA 170 (KLR)", Case Analysis (2021). Civil Application No. E096 of 2021 (notice of motion dated 9th December, 2020). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/170/eng@2021-11-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.