Nteere v Kongoni Camp Limited (Civil Application E100 of 2022) [2023] KECA 1626 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause a land ruling, confirming you cannot stay a dismissal that orders no one to do anything except pay costs.
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 applicant has an arguable appeal under the Rule 5(2)(b) principles
- 2.Whether the appeal would be rendered nugatory if stay of execution is not granted
- 3.Whether the orders of the Environment and Land Court are positive orders capable of execution and hence capable of being stayed
Key legal issues
#Whether the dismissal of the applicant's suit constituted a negative order incapable of being stayed
Yes - the suit was dismissed with costs and the 60-day window given to the applicants was not an executable order; only costs were recoverable, and costs cannot attract stay.
The Environment and Land Court dismissed the suit, granting only a gratuitous 60-day window to pursue other avenues of access, which expired without action. No order compelled any party to do or refrain from doing anything. Following Western College v Oranga, such a negative order is incapable of execution save as to costs, which cannot attract stay. The nugatory-impact test therefore fails.
Whether the applicant satisfied the settled Rule 5(2)(b) principles of an arguable appeal and nugatory impact
The application lacked merit; even assuming arguability, the applicant failed to show that the appeal would be rendered nugatory since a closed road could be re-opened if the appeal succeeded.
The court applied Stanley Kangethe Kinyanjui: the applicant must show an arguable appeal and that the appeal would be rendered nugatory without stay. The respondent demonstrated that any closure of the road would be reversible on appeal. With no executable positive order and a reversible state of affairs, neither limb of the test justified the discretionary stay.
Legal principles established
#- Under Rule 5(2)(b), an applicant for stay must first demonstrate an arguable appeal that is neither frivolous nor idle, and secondly that the appeal will be rendered nugatory if stay is not granted.
- A negative order - where the superior court did not order any party to do anything, refrain from doing anything, or pay any sum (save costs) - is incapable of execution and cannot attract a stay under Rule 5(2)(b).
Court orders
#- 1.Dismissal of the notice of motion seeking stay of execution
- 2.Costs of the application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court at Nanyuki
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules; sections 3A and 3B of the Appellate Jurisdiction Act; Article 159 of the Constitution
Relief refused
#Stay of execution of the judgment and decree of the Environment and Land Court delivered on 13th October 2022 pending the hearing and determination of the appeal
The suit was dismissed; there was no positive order capable of execution except costs, which cannot attract stay, so the nugatory-impact limb of Rule 5(2)(b) was not satisfied
Costs
The application is dismissed with costs (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.
the applicant has to satisfy that he has an arguable appeal. This is not an appeal that will necessarily succeed, but one that is neither frivolous nor idle. It is an appeal that ought to be argued fully before the Court.
It has to be shown that if stay is not granted what is sought to be stayed, if allowed to happen, will be irreversible or that damages will not reasonably compensate the applicant.
where the superior court did not order any of the parties to do anything or to refrain from doing anything or to pay any sum, this was a negative order which is incapable of execution save in respect of costs only.
The consequence is that, the application lacks merits. It is dismissed with costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nteere v Kongoni Camp Limited (Civil Application E100 of 2022) [2023] KECA 1626 (KLR)", Case Analysis (2023). Rule 5(2)(b) application (notice of motion) - Court of Appeal, Nyeri. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/1626/eng@2023-06-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.