Nderi Wathuko Chongo & 1 other v Samuel Njoroge Wathuko & 1 other
The bottom line
#Kenya's Court of Appeal confirmed you cannot 'stay' a dismissal — and without a valid Notice of Appeal, your application fails outright.
What this practically means
#Executive summary
#Key legal issues
#Whether dismissals by the trial court give rise to orders capable of being stayed under Rule 5(2)(b)
Dismissals are negative orders incapable of being stayed; there is nothing arising from the High Court decisions to enforce or restrain.
Applying Western College of Arts & Applied Sciences v Oranga, the Court held that where a trial court has merely dismissed applications, no positive order exists capable of enforcement or restraint by injunction. A stay under Rule 5(2)(b) presupposes an order with operative effect; a dismissal leaves the successful litigant with nothing to execute against, so there is nothing for the Court to stay.
Whether the Court has jurisdiction under Rule 5(2)(b) absent a valid Notice of Appeal
Rule 5(2)(b) jurisdiction arises only where an appeal has been filed or a notice of appeal has been lodged under Rule 75; absent a Notice of Appeal, the application is defective.
The Court read Rule 5(2)(b), which by its terms applies where a notice of appeal has been lodged in accordance with Rule 75. Since no valid Notice of Appeal was in place to support the orders sought, the Court lacked the jurisdictional foundation for the application, and the application failed on this independent ground.
The threshold for granting stay under Rule 5(2)(b)
An applicant must demonstrate both that the intended appeal is arguable (not frivolous) and that, if successful, it would be rendered nugatory without stay.
Relying on its own decision in Peter Gathecha Gachiri v AG, and the classic authorities of Butt v Rent Restriction Tribunal and Kenya Shell Ltd v Kibiru, the Court reiterated that Rule 5(2)(b) confers an independent discretionary jurisdiction governed by twin principles. These balance the successful litigant's fruits of judgment against the aggrieved litigant's right to challenge the decision in a higher court, and both limbs must be satisfied.
Legal principles established
#- Negative orders, such as the dismissal of an application, are not capable of being stayed under Rule 5(2)(b) because there is nothing to enforce or restrain.
- The jurisdiction of the Court of Appeal under Rule 5(2)(b) arises only where an appeal has been filed or a notice of appeal has been lodged in accordance with Rule 75.
- An applicant under Rule 5(2)(b) must satisfy the twin principles of arguability of the intended appeal and nugatory-ness if stay is not granted, and must satisfy the Court on both principles.
Court orders
#- 1.The application dated 28th February 2019 is dismissed with costs
- On appeal from
- High Court (Environment and Land Court)
- ELC Appeal No. 83 of 2016
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2010
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nderi Wathuko Chongo & 1 other v Samuel Njoroge Wathuko & 1 other", Case Analysis (2021). Civil Application No. 69 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/651/eng@2021-04-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.