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Court of AppealDismissedCivil Appeal (Application) E383 of 2021· [2022] KECA 491 (KLR)

Registered Trustees, Kenya Railways Staff Retirement Benefits Scheme v Millimo, Muthomi & Co. Advocates & 2 others

Court of Appeal
18 February 2022
WKW KaranjaASAsike-MakhandiaKLK I Laibuta
3,340 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~13 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to pause a garnishee order, confirming that negative orders cannot be stayed and both stay tests must be met.

What this practically means

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Executive summary

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This is a Rule 5(2)(b) ruling of the Court of Appeal at Nairobi (Karanja, Makhandia and Laibuta, JJA) in which the applicant, the Registered Trustees of the Kenya Railways Staff Retirement Benefits Scheme, sought stay of execution of a High Court ruling of 8th July 2021 (Ngenye, J) in H.C. Misc. Application No. 130 of 2018. The impugned ruling dismissed the applicant's third attempt to extend time to file a reference against an advocate's Bill of costs exceeding Kshs. 400 million, and made absolute a garnishee order nisi in favour of the applicant's former advocates, Millimo, Muthomi & Co. Advocates, directing the applicant's banks to pay out sums held in its accounts. The 1st respondent opposed the stay, arguing that the dismissal was a negative order incapable of being stayed, that the garnishee decree had already been executed, and that the Court lacked jurisdiction to stay orders where the underlying judgment was not under appeal. The Court declined to make determinative findings on jurisdiction, abuse of process or the completeness of the record, reserving those for the substantive appeal. It held that the dismissal of the applicant's application was a negative order that cannot be stayed, following Western College v Oranga and related authority. Although it found the appeal arguable, it held the nugatory aspect undemonstrated: substantial decretal sums had been paid, and the respondent, who is owed fees in other matters, could refund or set off. Since the twin Rule 5(2)(b) tests are conjunctive, the application was dismissed with costs in the appeal.

Key legal issues

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01

Whether the dismissal of the applicant's application for review/extension of time, being a negative order, is capable of being stayed

Holding

The dismissal of the applicant's application was a negative order incapable of execution save in respect of costs, and cannot be stayed.

Reasoning

The Court reiterated the long-standing position from Western College of Arts and Applied Sciences v Oranga and subsequent authority that where a superior court has not ordered any party to do anything, refrain from doing anything, or pay any sum, there is nothing arising from the judgment capable of execution, and a stay of such a negative order cannot lie.

p. 5
02

Whether the twin Rule 5(2)(b) thresholds of arguability and nugatory aspect were met

Holding

The appeal was arguably arguable, but the nugatory aspect failed because substantial monies had been paid and the respondent could refund; both limbs must be satisfied.

Reasoning

The Court accepted that the grounds questioning the Judge's discretion on abuse of process were arguable if jurisdiction resolved in the applicant's favour. However, on the evidence the applicant had voluntarily paid a substantial amount of the decretal sum, the respondent was not shown to be impecunious, and it could refund or set off monies against fees owed in other matters, so no nugatory outcome was demonstrated.

p. 6
03

Whether the Court should determine the jurisdictional and abuse-of-process issues raised

Holding

The Court expressly declined to determine the jurisdiction, abuse of process and completeness-of-record issues, leaving them for the bench hearing the substantive appeal.

Reasoning

The Court reminded itself that an interlocutory application under Rule 5(2)(b) must not make determinative findings on issues that would embarrass the court seized of the appeal. It therefore confined itself to the settled arguability and nugatory principles and left the jurisdictional and abuse-of-process questions open.

p. 5

Legal principles established

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  • Negative orders of a superior court, which do not order any party to do or refrain from doing anything or to pay any sum, are incapable of being stayed on appeal.
  • Under Rule 5(2)(b), the twin tests of arguability and nugatory aspect are conjunctive; an applicant must satisfy both.
  • An arguable appeal is not one that must succeed, but one deserving of the court's consideration.

Court orders

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  1. 1.The application dated 18th March 2021 seeking stay of execution under Rule 5(2)(b) is dismissed
  2. 2.Costs of the application to be in the appeal

Authorities

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Legislation

  • Court of Appeal RulesRule 5(2)(b)

Cases cited (5)

  • Western College of Arts and Applied Sciences vs Oranga & Others
    (1976-80) 1 KLR

    Negative orders incapable of execution and thus incapable of being stayed.

  • Wilson v Church

    Distinguished within the quoted passage: trustees ordered to pay out of a fund, unlike a mere dismissal.

  • Kenya Commercial Bank Limited vs Tamarind Meadows Limited & 7 Others
    [2016] eKLR

    Expounding stay of execution of negative orders.

  • Kanwal Sarjit Singh Dhiman vs Keshavji Juvraj Shah
    [2008] eKLR

    A dismissal order is a negative order incapable of execution save in respect of costs.

  • Dennis Mogambi Mang’are vs Attorney General & 3 Others
    [2012] eKLR

    Definition of an arguable appeal as one deserving of consideration, not necessarily one that will succeed.

On appeal from
High Court of Kenya at Nairobi
H.C. Misc. Application No. 130 of 2018
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (25)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Registered Trustees, Kenya Railways Staff Retirement Benefits Scheme v Millimo, Muthomi & Co. Advocates & 2 others", Case Analysis (2022). Civil Appeal (Application) E383 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/491/eng@2022-02-18

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