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Court of AppealDismissedCourt of Appeal Application No. (Notice of Motion dated 18th March 2024), arising from Kiambu HCCC No. E006 of 2021· [2024] KECA 624 (KLR)

Mwanthii & 2 others v Mukami (Civil Appeal (Application) E124 of 2024) [2024] KECA 624 (KLR)

Court of Appeal of Kenya
24 May 2024
DMD. K. MusingaASAsike-MakhandiaSKS. ole Kantai
817 words in judgment
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The bottom line

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The Court of Appeal confirmed you cannot 'stay' a dismissal — only positive orders requiring someone to act, pay, or refrain can be stayed pending appeal.

What this practically means

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Executive summary

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The applicants moved the Court of Appeal at Nairobi under rule 5(2)(b) of the Court's Rules seeking stay of execution of a ruling and order of Chepkwony, J. in Kiambu HCCC No. E006 of 2021 delivered on 16th January 2024, by which the Judge dismissed the applicants' application to reinstate a suit that had been dismissed. At the inter partes hearing, counsel for the applicants relied on written submissions and a further affidavit. The Court sought confirmation that the order intended to be appealed was a dismissal order, i.e. a negative order. Counsel for both parties confirmed this; counsel for the applicants, when pressed, could not identify any positive aspect of the ruling capable of being stayed and left the matter to the Court. The Court held that its jurisprudence on stay pending appeal is settled: a dismissal or negative order is incapable of being stayed, and for a stay to lie the order or decree must be positive, that is, one requiring a party to do something, refrain from doing something, or pay a sum. It applied Western College of Arts and Applied Sciences v Oranga and Co-operative Bank of Kenya Ltd v BIFU (which had quoted Mugenyi & Co. Advocates v National Insurance Corporation of Uganda). Finding that the High Court had ordered nothing to be done or refrained from, the Court held there was nothing to stay and dismissed the application with costs to the respondent. The bench of Musinga, Asike-Makhandia and ole Kantai, JJA, delivered a single unanimous judgment on 24th May 2024 at Nairobi.

Key legal issues

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01

Whether a negative order (dismissal of an application) can be stayed pending appeal

Holding

No - a dismissal or negative order cannot be stayed; the order sought to be stayed must be a positive order requiring a party to do, refrain from doing, or pay something.

Reasoning

The Court reaffirmed its settled jurisprudence that stay of execution presupposes a positive order capable of being delayed or suspended. In this case the High Court Judge had merely dismissed an application for reinstatement, ordering no party to do or refrain from doing anything. Following Western College v Oranga and Co-operative Bank v BIFU, there was nothing to execute or stay, so the application failed.

p. 2

Legal principles established

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  • A dismissal or negative order is incapable of being stayed; for a stay of execution to lie, the order or decree sought to be stayed must be positive in nature.

Court orders

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  1. 1.The application for stay of execution is dismissed with costs to the respondent

Authorities

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Legislation

  • Court of Appeal Rulesrule 5(2)(b)

Cases cited (4)

  • Western College of Arts and Applied Sciences v Oranga & Others
    [1976-80] 1 KLR 63
  • Co-operative Bank of Kenya Limited v Banking Insurance & Finance Union (Kenya)
    [2015] eKLR
  • Mugenyi & Co. Advocates v National Insurance Corporation
    Civil Appeal No. 13 of 1984
  • Wilson v Church
On appeal from
High Court of Kenya
Kiambu HCCC No. E006 of 2021
Jurisdiction invoked
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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Later judgments citing this (4)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Mwanthii & 2 others v Mukami (Civil Appeal (Application) E124 of 2024) [2024] KECA 624 (KLR)", Case Analysis (2024). Court of Appeal Application No. (Notice of Motion dated 18th March 2024), arising from Kiambu HCCC No. E006 of 2021. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/624/eng@2024-05-24

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