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Court of AppealDismissedCivil Application No. E634 of 2022 (Nairobi)· [2023] KECA 1570 (KLR)

Assets Recovery Agency v Boru & 3 others (Civil Application E441 of 2022) [2023] KECA 1570 (KLR)

Court of Appeal
22 June 2023
DMD. K. MusingaKLK. I. LaibutaGNG. W. Ngenye-Macharia
1,850 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 'stay' a court order that simply dismisses a case — no positive order, no stay.

What this practically means

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Executive summary

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By a Notice of Motion dated 23rd November 2022 under sections 3, 3A and 3B of the Appellate Jurisdiction Act, rules 4, 5 and 77 of the Court of Appeal Rules and sections 53, 53A and 82(2)(b) of POCAMLA, the applicant sought stay of execution of the High Court judgment of 10th November 2022 (E. Maina, J) in ACEC Misc. Application No. E006 of 2021, plus an injunction restraining the 2nd and 3rd respondents from proceeding with execution. The High Court had declined to declare motor vehicle KBL 804V an instrumentality of crime, leaving that question to the trial court, and had allowed preservation orders to subsist for 14 days only. The applicant argued the High Court wrongly tied civil forfeiture to the criminal trial's outcome. The 2nd respondent opposed, contending the High Court had issued a negative order incapable of execution. The Court of Appeal framed one issue: whether the applicant met the threshold for stay. Applying the settled rule 5(2)(b) twin tests (arguable appeal and nugatory appeal), the court held the High Court's order was akin to a dismissal - a negative order incapable of being stayed, since neither party was ordered to do or refrain from doing anything. The injunction prayer was also untenable: it sought to restrain an 'execution process' that did not exist, and the court could not grant relief not pleaded. The application was dismissed with each party bearing its own costs. The judgment binds lower courts on the unavailability of stay against negative orders and the rule that parties are bound by their pleadings.

Key legal issues

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01

Whether a negative order of dismissal is capable of being stayed

Holding

It is not; stay of execution is unavailable where the order below directed no party to do or refrain from doing anything.

Reasoning

The High Court left the instrumentality question to the trial court and merely allowed the preservation orders to subsist for 14 days. Following Kanwal Sarjit Singh Dhimažl and Oliver Collins Wanyama, the court held the order was akin to a dismissal, a negative order incapable of execution, so nothing existed that could be stayed.

p. 3
02

Whether the court could grant an injunction restraining 'the execution process'

Holding

No; the prayer as phrased was untenable because no execution process existed, and the court cannot grant unpleaded relief.

Reasoning

The High Court had ordered no party to act or refrain from acting, so it was not evident what the respondents would be 'proceeding with'. A properly framed prayer (e.g. restraining sale, disposal or transfer of the vehicles) might have been feasible, but the applicant did not seek it, and parties are bound by their pleadings.

p. 4

Legal principles established

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  • The Court of Appeal has no power to stay a negative order of dismissal; a negative order incapable of execution cannot be stayed.
  • Parties are bound by their pleadings and a court cannot award a relief which has not been sought.
  • An applicant under rule 5(2)(b) must demonstrate an arguable appeal and that, unless stay is granted, the appeal would be rendered nugatory.

Court orders

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  1. 1.Application dismissed
  2. 2.Each party to bear its own costs

Authorities

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Legislation

  • Appellate Jurisdiction Actsections 3, 3A and 3B
  • Court of Appeal Rulesrules 4, 5 and 77
  • Proceeds of Crime and Anti-money Laundering Act (POCAMLA)sections 53, 53A and 82(2)(b)

Cases cited (8)

  • Jennifer Akinyi Osodo v Boniface Okumu Osodo & 3 others
    [2021] eKLR
  • East African Excavation Co. Ltd v Nutech System & Trading Co. Ltd
    [2021] eKLR
  • Stanley Kangethe Kinyanjui v Tony Ketter & others
    [2013] eKLR
  • Kanwal Sarjit Singh Dhimažl v Keshavji Juvraj Shah
    [2008] eKLR
  • Western College of Arts & Applied Sciences v Oranga & others
    [1976] KLR 63
  • Oliver Collins Wanyama v Engineers Board of Kenya
    [2019] eKLR
  • Galaxy Paints Co. Ltd v Falcon Guards Ltd
    [2002] 2EA 385
  • Abdukrazak Khalifa Salimu v Harun Rashid Khator & 2 others
    [2018] eKLR
On appeal from
High Court of Kenya, Anti-Corruption & Economic Crimes Division
Miscellaneous Application No. E006 of 2021
Jurisdiction invoked
Sections 3, 3A and 3B of the Appellate Jurisdiction Act; rules 4, 5 and 77 of the Court of Appeal Rules; sections 53, 53A and 82(2)(b) of the Proceeds of Crime and Anti-money Laundering Act; rule 5(2)(b) of the Court of Appeal 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, "Assets Recovery Agency v Boru & 3 others (Civil Application E441 of 2022) [2023] KECA 1570 (KLR)", Case Analysis (2023). Civil Application No. E634 of 2022 (Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1570/eng@2023-06-22

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