Jackson Kamau Ndegwa v Hon. Attorney General & 7 others
The bottom line
#Kenya's Court of Appeal confirmed you cannot get a stay of an order that strikes out your case, because there is nothing to execute.
What this practically means
#Executive summary
#Key legal issues
#Whether an order striking out a petition, which is a negative order, is capable of being stayed
The Court held that the trial court's striking out of the petition was a negative order that ordered no party to do or refrain from doing anything, and therefore there is nothing to stay
Relying on a consistent line of Court of Appeal authority including Kaushik Panchamatia and Co-operative Bank of Kenya, the Court adopted the principle from Western College that where a court merely dismisses or strikes out a suit, the only thing capable of execution would be costs. Since the trial judge made no positive order and directed no party to do anything, the jurisdiction to grant a stay of execution under Rule 5(2)(b) was not engaged. The Court described itself as of a firm view on this point.
Whether the intended appeal, if successful, would be rendered nugatory absent a stay
The applicant failed to demonstrate nugatory effect because he retained alternative remedies, namely litigating in ELC No. 359 of 2013 or appealing the Children's Court orders
Even setting aside the negative-order point, the Court found the nugatory limb of the Rule 5(2)(b) test unmet. The applicant's complaints about the sale of the suit land and the alleged violation of his property rights remained live in the pending ELC suit, and any grievance with the Children's Court orders could be pursued by way of appeal. The failure of both limbs of the twin test was fatal to the motion, which was dismissed without costs.
Legal principles established
#- A negative order - one which does not order any party to do anything or refrain from doing anything - is incapable of execution and no stay of execution can be granted in respect of it
- An applicant under Rule 5(2)(b) must demonstrate both that the intended appeal is arguable and that the appeal will be rendered nugatory unless the stay or injunction is granted
Court orders
#- 1.The applicant's notice of motion dated 9th October, 2018 is dismissed
- 2.No order as to costs
- On appeal from
- High Court of Kenya at Nakuru
- Petition No. 29 of 2017
- Jurisdiction invoked
- Section 3A, 3B, 4 & 5 of the Appellate Jurisdiction Act (Cap 9) and Rules 5 & 47 of the Court of Appeal Rules, particularly Rule 5(2)(b)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Jackson Kamau Ndegwa v Hon. Attorney General & 7 others", Case Analysis (2021). Civil Application No. NYR 132 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/815/eng@2021-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.