Joseph Muriithi Njeru v County Government of Kirinyaga
The bottom line
#Kenya's Court of Appeal confirmed you cannot get a stay of execution against an order that merely dismissed your case, because there is nothing to stay.
What this practically means
#Executive summary
#Key legal issues
#Whether a stay of execution can issue in respect of a negative order
No - an order that merely strikes out or dismisses a suit without requiring any party to do or refrain from anything is not capable of execution and cannot be stayed.
The court adopted its own precedents, including Western College and Co-operative Bank of Kenya v BIFU, holding that where a court has granted negative orders there is nothing to stay or enforce by injunction. The trial judge's order merely struck out the applicant's petition; no party was ordered to do or refrain from doing anything or to pay any sum, so there was nothing capable of execution.
Whether the applicant demonstrated that the appeal would be rendered nugatory
He did not; he remains an employee of the respondent and the injunction relief was unpersuasive on the merits.
The court found the applicant had not shown how success in the intended appeal would be rendered nugatory since he remains employed by the respondent. It also found no evidence of wrongdoing by the respondent, which had lawfully exercised its discretion as an employer to deploy the applicant between departments, making the arguability of that ground doubtful.
Legal principles established
#- A negative order - one dismissing or striking out a suit without compelling any party to do or refrain from doing anything - is incapable of execution and no stay of execution may be granted in respect of it under Rule 5(2)(b).
- An applicant under Rule 5(2)(b) must satisfy the twin principles of an arguable appeal and that the appeal will be rendered nugatory absent the order sought.
- The principle of res judicata applies even where the earlier suit was dismissed, not only where it was determined on the merits.
Court orders
#- 1.The applicant's motion dated 3rd December, 2020 is dismissed
- 2.No order as to costs
- On appeal from
- Employment and Labour Relations Court at Nyeri
- ELRC No. 4 of 2020
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Joseph Muriithi Njeru v County Government of Kirinyaga", Case Analysis (2021). Civil Application No. 115 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/846/eng@2021-03-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.