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Court of AppealDismissedCivil Application No. 333 of 2019· [2021] KECA 559 (KLR)

Raphael Kakene Muloki & 1 other v The Cabinet Secretary of Lands & 2 others

Court of Appeal of Kenya
21 May 2021
1,392 words in judgment
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The bottom line

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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

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Executive summary

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The applicants, Raphael Kakene Muloki and Peter Maingi Kavita, moved the Court of Appeal under Rules 5(2)(b), 41, 42 and 47 of the Court of Appeal Rules seeking stay of execution of the judgment of Odunga J in Machakos Judicial Review Misc. Application No. 231 of 2018, delivered on 26th June 2019, pending the hearing of an intended appeal. Their judicial review proceedings had challenged the Cabinet Secretary for Lands' implementation of one of two conflicting Ministerial judgments over the same parcel of land - the one favouring the 2nd and 3rd respondents rather than the one favouring the applicants. The High Court dismissed that motion with no orders as to costs. The respondents opposed the stay application, contending it had been overtaken by events since the land had been subdivided and title deeds issued to the 2nd and 3rd respondents, and that the applicants had never occupied the land nor held title. Applying the settled twin principles under Rule 5(2)(b), the Court found no arguable appeal and no risk that the appeal would be rendered nugatory. Critically, it held that a bare dismissal is a negative order incapable of execution and therefore incapable of stay, citing Western College of Arts and Applied Sciences v EP Oranga and Raymond M. Omboga v Austine Pyan Maranga. The Court also noted the uncontroverted subdivision and issuance of titles, rendering any stay futile. The motion was dismissed with costs to the respondents.

Key legal issues

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01

The twin principles governing Rule 5(2)(b) applications

Holding

The applicants failed to establish either principle: the pleadings did not demonstrate an arguable appeal or that the appeal would be rendered nugatory

Reasoning

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.

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02

Whether a negative order is capable of stay

Holding

No - a bare dismissal with no orders is a negative order incapable of execution and thus incapable of stay

Reasoning

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.

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03

Effect of the subject matter having been overtaken by events

Holding

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

Reasoning

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.

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Legal principles established

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  • 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

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  1. 1.The motion dated 8th October 2019 was dismissed
  2. 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

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Practical implications

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Frequently asked questions

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Cite this brief

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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.