Gikonyo & another v Wambui
The bottom line
#Kenya's Court of Appeal confirmed you cannot get a stay of execution against a dismissal, because a dismissal is a negative order with nothing to enforce.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants demonstrated an arguable appeal as required under Rule 5(2)(b)
- 2.Whether the appeal would be rendered nugatory absent a stay of execution
Key legal issues
#Whether stay of execution can issue against an order of dismissal
No - a dismissal is a negative order; there is nothing to execute or stay, save perhaps costs.
The court applied its long-standing jurisprudence, including Western College of Arts and Applied Sciences v EP Oranga, holding that where the High Court has not ordered any party to do, refrain from doing, or pay anything, there is nothing arising from the judgment capable of being stayed. The applicants therefore ran into an insurmountable threshold obstacle.
Whether the intended appeal was arguable under Rule 5(2)(b)
The court doubted arguability because the appeal raised only matters of fact, beyond a second appeal confined to points of law.
The court noted that the intended appeal basically raised matters of fact, whereas a second appeal lies on points of law only. On that basis it harboured doubt whether the appeal was arguable, and found the first hurdle of the Rule 5(2)(b) test unsurmounted, making it unnecessary to consider whether the appeal would be rendered nugatory.
Legal principles established
#- A dismissal is a negative order incapable of execution and therefore incapable of stay; stay of execution lies only against positive orders.
- An applicant under Rule 5(2)(b) must first demonstrate an arguable appeal; failing that, the court need not consider the nugatory-ness limb.
Court orders
#- 1.Dismissal of the application for stay of execution with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nanyuki
- Civil Appeal No. 3 of 2020
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the High Court judgment and decree in Civil Appeal No. 3 of 2020 pending the intended appeal
The decision appealed against is a negative order incapable of execution or stay, and the applicants failed to demonstrate an arguable appeal
Costs
Application dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
First, the decision appealed against is a dismissal. It is therefore a negative order.
Where there is no positive order made in favour of the respondent which is capable of execution, there can be no stay of execution of such an order
The first hurdle on the requirement that the applicant must demonstrate that they have an arguable appeal has not been surmounted. Having so found, we need not get into the second aspect on the nugatory aspect.
For the foregoing reasons, we find the application devoid of merit and dismiss it with costs to the respondent.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gikonyo & another v Wambui", Case Analysis (2022). Civil Application E019 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1033/eng@2022-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.