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Court of AppealDismissedCivil Application (Rule 5(2)(b) motion dated February 18, 2021)· [2023] KECA 114 (KLR)

Samuel Kimintae Mparo & 5 others v Mathare Investments & Properties Limited

Court of Appeal of Kenya
3 February 2023
1,188 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal confirmed you cannot get a stay of a judgment that simply dismissed your suit — there is nothing to stay.

What this practically means

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Executive summary

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This was an application under Rule 5(2)(b) of the Court of Appeal Rules seeking a stay of a judgment of the Environment & Land Court (Angote, J, delivered May 15, 2020) dismissing the applicants' originating summons claiming the suit property, Title Number Kajiado/Kaputiei-South/45, by adverse possession, together with an injunction restraining eviction pending appeal. The applicants relied on the twin principles: arguability of the appeal (challenging the judge's finding that the requirements of adverse possession were not fulfilled) and nugatory-ness if the respondents dealt with the property. The respondents countered that a dismissed suit produced no order capable of being stayed and that any eviction would flow from their rights as registered owners rather than from the judgment. The Court, differently constituted as Karanja, Musinga and Sichaletitle JJA, applied Stanley Kang'ethe Kinyanjui v Tony Keter and Western College of Arts & Applied Sciences v Oranga, reiterating that an applicant must satisfy both the arguability and nugatory-ness limbs, and that where the court below merely dismissed a suit there is no positive order to stay, execution lying only in respect of costs. Finding nothing warranting a stay, the Court dismissed the motion with costs. It also apologized for the delay in delivering the ruling, which was discovered when the Presiding Judge combed through her records. The ruling binds the Environment & Land Court and High Court on the negative-order principle.

Key legal issues

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01

Whether a stay can issue of a judgment that dismissed the suit

Holding

No; a dismissed suit yields only a negative order with nothing to stay except costs.

Reasoning

Following Western College of Arts & Applied Sciences v Oranga, the court held that where the High Court has merely dismissed a suit without ordering any party to do or refrain from doing anything, there is nothing arising from the judgment capable of enforcement or restraint by injunction on a stay application. The applicants' adverse possession suit having been dismissed, no stay of the judgment could issue.

p. 3
02

The twin principles governing Rule 5(2)(b) applications

Holding

The applicant must demonstrate an arguable appeal and that the appeal would be rendered nugatory absent stay.

Reasoning

The court restated the settled principles from Stanley Kang'ethe Kinyanjui v Tony Keter: the discretion under Rule 5(2)(b) is wide but must be exercised justly; one bona fide arguable ground suffices; the meaning of 'nugatory' includes reversible or uncompensable outcomes; and the court must not make definitive findings of fact or law at the interlocutory stage. The applicants failed to satisfy these principles on the facts.

p. 2

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy both twin principles: an arguable appeal and that the appeal would be rendered nugatory absent stay.
  • Where the court below merely dismissed a suit, there is no positive order to be stayed; execution can only lie in respect of costs.

Court orders

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  1. 1.The Notice of Motion dated February 18, 2021 is dismissed
  2. 2.The applicants to pay the costs of the motion
On appeal from
Environment & Land Court
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, with Order 40 Rule 1 and Order 51 Rule 1 of the Court's Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Samuel Kimintae Mparo & 5 others v Mathare Investments & Properties Limited", Case Analysis (2023). Civil Application (Rule 5(2)(b) motion dated February 18, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/114/eng@2023-02-03

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