Thomas Mutere Kusienya v Jamin Juma Wekesa & 8 others
The bottom line
#The Court of Appeal dismissed a stay application because you cannot 'stay' an order that merely struck out a suit—there is nothing to execute.
What this practically means
#Executive summary
#Key legal issues
#Whether stay of execution may issue where the order sought to be stayed is a negative order
No; a negative order striking out a suit is not capable of execution, save for costs, and an applicant for stay from such an order must still demonstrate how the appeal would be rendered nugatory.
The ELC judge had merely struck out the applicant's suit with costs, ordering no party to do or refrain from doing anything or to pay any sum other than costs. Applying Western College, the court asked what there was to stay and concluded there was nothing capable of execution. Even if arguability of the appeal were assumed, the applicant had to separately demonstrate nugatory-ness, which he failed to do.
The twin principles governing Rule 5(2)(b) applications
An applicant must establish that the appeal or intended appeal is arguable, not frivolous, and that unless the stay or injunction is granted the appeal will be rendered nugatory.
The court reiterated the well-settled two-limb test for relief under Rule 5(2)(b), drawing on Ismael Kagunji Thande v Housing Finance Kenya Ltd and Githunguri v Jimba Credit Corporation Ltd No. 2. The jurisdiction is original and discretionary, and both limbs must be satisfied; the unopposed nature of the motion does not lessen the burden.
Legal principles established
#- For an application under Rule 5(2)(b) to succeed, the applicant must establish both that the appeal is arguable and that it will be rendered nugatory absent the stay or injunction sought.
- A stay of execution cannot be granted in respect of a negative order such as an order striking out a suit, since there is nothing to execute.
- The fact that an application is unopposed does not relieve the applicant of the burden of satisfying the Rule 5(2)(b) tests.
Court orders
#- 1.Dismissal of the Notice of Motion dated 29th June, 2020
- 2.No order as to costs
- On appeal from
- Environment and Land Court of Kenya at Kakamega
- Kakamega ELC Case No. 65 of 2013
- 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, "Thomas Mutere Kusienya v Jamin Juma Wekesa & 8 others", Case Analysis (2021). Civil Application No. 157 of 2020. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2021/927/eng@2021-03-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.