Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
Caselaw
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealPartially AllowedCivil Appeal (Application) E458 of 2021· [2022] KECA 1234 (KLR)

Maseno University Sacco Society Ltd v Stima Sacco Society Ltd

Court of Appeal
4 November 2022
HOHA OmondiKLKI LaibutaPGPM Gachoka
1,011 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~4 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal ruled you cannot get a stay of execution against an order that merely dismisses your application, but it allowed the appeal to proceed.

What this practically means

#

Executive summary

#
The applicant, Maseno University Sacco Society Ltd, sought stay of execution pending appeal against a High Court ruling of 22 July 2021 dismissing its application for review of a judgment that had set aside a Co-operative Tribunal award and ordered specific performance of a share transfer agreement. Its notice of motion, presumed brought under rule 5(2)(b) of the Court of Appeal Rules, sought stay of the review-dismissal orders, stay of execution of the High Court appeal judgment, leave to appeal, and costs in the cause. The Court of Appeal (HA Omondi, KI Laibuta and PM Gachoka, JJA) held that the orders dismissing the review application were negative orders, incapable of execution, and therefore stay could not issue in respect of them, applying Co-operative Bank of Kenya Ltd v BIFU (Kenya), Executive Estates Ltd v Kenya Posts & anor, and George Ole Sangui v Kedong Ranch Ltd. However, considering the grounds of appeal - including alleged contradictions between the High Court's reasoning and orders, and that the review was determined by a different judge - the court granted leave to appeal. The application was thus partially allowed: stay dismissed, leave granted, and costs of the application made costs in the appeal. The ruling binds subordinate courts and tribunals on the principle that negative orders cannot be stayed. Note: the judgment's heading attributes the ruling below to G. Ngenye, J while the body attributes it to Grace Nzioka, J - a material internal inconsistency.

Key legal issues

#
01

Whether a stay of execution may issue in respect of an order dismissing an application for review

Holding

No. An order dismissing an application is a negative order, incapable of execution, and stay of execution cannot be granted in respect of it.

Reasoning

The court applied its own decision in Co-operative Bank of Kenya Ltd v BIFU (Kenya) and George Ole Sangui v Kedong Ranch Ltd, which define negative orders as those incapable of execution because they require no party to do or refrain from doing anything and confer no relief. The learned judge's orders dismissing the review motion merely determined the application and were therefore not stayable.

p. 2
02

Whether leave to appeal should be granted

Holding

Yes. Considering the grounds of appeal, including alleged contradictions between the High Court's reasoning and orders and that the review was determined by a different judge, it was fair and just to grant leave.

Reasoning

The court noted an appeal was already lodged and no leave had been granted. Weighing the grounds raised - contradictions between reasoning and orders, and determination of the review by a different judge - the court formed the view that fairness and justice required that leave be granted as sought.

p. 2

Legal principles established

#
  • Negative orders, such as orders dismissing an application or suit, are incapable of execution and no stay of execution can issue in respect of them.

Court orders

#
  1. 1.The application for stay of execution of the impugned ruling fails and is dismissed
  2. 2.Leave granted to the applicant to appeal
  3. 3.Costs of the application to be costs in the appeal

Authorities

#

Legislation

  • Court of Appeal Rulesrule 5(2)(b)

Cases cited (3)

  • Co-operative Bank of Kenya Limited vs Banking Insurance & Finance Union (Kenya)
    [2015] eKLR

    Definition of negative orders as orders incapable of execution; stay of execution cannot issue in respect of such orders.

  • Executive Estates Limited v Kenya Posts & anor
    [2005] 1 EA 53

    An order dismissing a suit is a negative order not capable of execution.

  • George Ole Sangui & 12 others vs Kedong Ranch Limited
    [2015] eKLR

    A dismissal order is not a positive order, confers no relief, and cannot be stayed or enforced.

On appeal from
High Court of Kenya at Nairobi
H.C.C.A No. 4 of 2018
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (presumed by the court)

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Maseno University Sacco Society Ltd v Stima Sacco Society Ltd", Case Analysis (2022). Civil Appeal (Application) E458 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1234/eng@2022-11-04

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