Raphael Kakene Muloki & 1 other v The Cabinet Secretary of Lands & 2 others
The bottom line
#The Court of Appeal refused to pause the effects of a High Court loss, ruling a plain dismissal is a 'negative order' with nothing to stay.
What this practically means
#Executive summary
#Key legal issues
#The twin principles governing Rule 5(2)(b) applications
The applicants failed to establish either principle: the pleadings did not demonstrate an arguable appeal or that the appeal would be rendered nugatory
The court restated the settled principles under Rule 5(2)(b), citing Stanley Kangethe Kinyanjui v Tony Ketter, requiring an applicant to show the appeal is arguable (not frivolous) and that it would be rendered nugatory absent stay. On a cursory perusal of the pleadings the court found neither limb satisfied, and found no basis for exercising its discretion to stay.
Whether a negative order is capable of stay
No - a bare dismissal with no orders is a negative order incapable of execution and thus incapable of stay
Relying on Western College of Arts and Applied Sciences v EP Oranga and Raymond M. Omboga v Austine Pyan Maranga, the court held that the High Court merely dismissed the applicants' motion with no orders as to costs; it ordered no party to do or refrain from doing anything. There being nothing arising from the judgment capable of execution, there is nothing to stay.
Effect of the subject matter having been overtaken by events
Since the land had been subdivided and title deeds issued to the 2nd and 3rd respondents without contradiction, any stay orders would issue in vain
The respondents submitted that the suit land had been subdivided and titles issued to the 2nd and 3rd respondents; the applicants did not controvert that fact. The court held that granting the orders sought would be issuing orders in vain whose futility was obvious, reinforcing the conclusion that the application lacked merit.
Legal principles established
#- An applicant for stay under Rule 5(2)(b) must demonstrate that the intended appeal is arguable and that the appeal would be rendered nugatory unless the orders sought are granted
- A negative order, such as a plain dismissal of a suit or motion, is incapable of execution and therefore incapable of stay
- Where the subject matter has been overtaken by events, granting stay orders would be futile
Court orders
#- 1.The motion dated 8th October 2019 was dismissed
- 2.Costs of the application were awarded to the respondents
- On appeal from
- High Court of Kenya at Machakos
- Machakos Judicial Review Misc Appl. No. 231 of 2018
- Jurisdiction invoked
- Rule 5(2)(b), 41, 42 and 47(1) and (2) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Raphael Kakene Muloki & 1 other v The Cabinet Secretary of Lands & 2 others", Case Analysis (2021). Civil Application No. 333 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/559/eng@2021-05-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.