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Court of AppealDismissedCivil Application No. 68 of 2019· [2021] KECA 625 (KLR)

George Karongo Kagunya & 1 other v Njuguna Kibaki Munga

Court of Appeal
7 May 2021
Martha Karambu KoomeM. K. KoomeMohamed Abdulahi WarsameM. WarsameASAsike-Makhandia
846 words in judgment
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The bottom line

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Kenya's Court of Appeal confirmed you cannot seek a stay of execution against a dismissal — only positive, enforceable court orders can be stayed pending appeal.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Koome, Warsame and Asike-Makhandia, JJ.A.) on a notice of motion dated 28th February 2019 by George Karongo Kagunya and Kangunya Kibaki seeking leave and stay of execution to file and serve a notice of appeal against the judgment of the Environment and Land Court (Obaga, J.) of 17th May 2018 in ELC Appeal No. 83 of 2016. That judgment had dismissed the applicants' second appeal and upheld the orders of the Kiambu Land Disputes Tribunal that LR No. Kiambaa/Kihara/2350, a remnant of the brothers' father's land, was held in trust for the respondent and should be transferred to him. The applicants argued that their delay was attributable to an unanswered letter requesting certified proceedings. The court restated the twin-limb test for stay under rule 5(2)(b) - an arguable appeal and nugatoriness - but held that the decisive issue was whether the order sought to be stayed was a positive, enforceable order. Relying on Republic v Kenya Wildlife Service, it held that a dismissal of a suit is a negative order incapable of being stayed, as the superior court made no order requiring any party to do or refrain from doing anything. The application fell outside the court's discretion and was dismissed with costs. The binding effect of the ruling is that stay of execution under rule 5(2)(b) lies only in respect of positive, enforceable orders.

Key legal issues

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01

Whether an order of dismissal of a suit (a negative order) can be stayed pending appeal

Holding

No. Stay under rule 5(2)(b) lies only in respect of positive, enforceable orders; a negative order such as a dismissal leaves nothing to enforce and cannot be stayed.

Reasoning

The court applied its earlier decision in Republic v Kenya Wildlife Service, holding that where the superior court has not ordered any party to do or refrain from doing anything, there is no positive enforceable order capable of being stayed. The judgment of the ELC dismissed the appeal with costs and thus made no positive order against the applicants. The application therefore fell outside the court's discretion under rule 5(2)(b), irrespective of the arguability of the intended appeal.

p. 2

Legal principles established

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  • An applicant for stay under rule 5(2)(b) must satisfy the twin limbs that the intended appeal is arguable and that, if stay is not granted, the appeal would be rendered nugatory.
  • The Court has no jurisdiction to grant stay of a negative order - only a positive and enforceable order of the superior court can be the subject of an application for stay or injunction.
  • A dismissal of a suit, being a negative order, is not capable of being stayed.

Court orders

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  1. 1.The applicants' Notice of Motion dated 28th February 2019 is dismissed with costs
On appeal from
High Court of Kenya at Nairobi (Environment and Land Court)
ELC Appeal No. 83 of 2016
Jurisdiction invoked
Rules 4 and 5(2)(b) of the Court of Appeal Rules, 2010

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, "George Karongo Kagunya & 1 other v Njuguna Kibaki Munga", Case Analysis (2021). Civil Application No. 68 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/625/eng@2021-05-07

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