Muguna v Muhu Holdings Co Ltd (Civil Application E221 of 2024) [2024] KECA 1465 (KLR)
The bottom line
#Kenya's Court of Appeal refused to stop a tenant's eviction, confirming you cannot stay a 'negative order' and ELC decisions on BPRT appeals are final.
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 intended appeal is arguable under rule 5(2)(b) of the Court of Appeal Rules
- 2.Whether, if the orders sought are not granted and the appeal succeeds, the appeal would be rendered nugatory
- 3.Whether the Court can grant a stay of execution of, or a mandatory injunction in respect of, a negative order striking out an appeal
Key legal issues
#Twin principles for relief under rule 5(2)(b)
The applicant must satisfy both limbs - that the appeal is arguable and that it will be rendered nugatory if stay is denied; failure of one limb disposes of the application
The Court restated that rule 5(2)(b) jurisdiction is original and discretionary, guided by the interests of justice. The arguability limb requires at least one bona fide arguable ground that is not frivolous, and the nugatory limb is considered only if arguability is established. Both limbs must be demonstrated to the Court's satisfaction.
Arguability of the intended appeal
The draft memorandum of appeal disclosed no arguable point of law; the constitutional violations asserted were new matters not ventilated before the ELC
The Court examined the draft memorandum and grounds and found the appeal not arguable. The constitutional rights claims were new matters not raised before the ELC and did not deserve interrogation; the alleged discrepancy in the business premises identification was not an issue before the ELC, and the BPRT had visited the locus in quo and was satisfied as to the applicant's tenancy.
Stay of a negative order
An order striking out an appeal is a negative order incapable of execution and cannot be stayed
Since the appeal below was struck out, the resulting order was negative - it directed no party to do or abstain from doing anything. Such an order is incapable of execution, so a stay of execution is conceptually unavailable, following Chege v Gachora.
Legal principles established
#- A negative order, one that does not order any party to do or refrain from doing anything, is incapable of execution and cannot be the subject of an order for stay of execution
- Section 15 of the Business Premises (Hotels, Shops and Catering Establishments) Act bars appeals to the Court of Appeal from a decision of the ELC on appeal from the BPRT; the ELC decision is final
Court orders
#- 1.The application dated May 14, 2024 is hereby dismissed
- 2.The applicant shall bear the costs of the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court (High Court)
- Application to strike out record of appeal in appeal against BPRT ruling of 5th November 2021
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the judgment and decree of Mwangi, J dated 7th May 2024
The intended appeal was not arguable and the order struck out was a negative order incapable of execution
Mandatory injunction restraining eviction and/or restoring the applicant to the suit premises with damages
Both rule 5(2)(b) limbs must be satisfied; having failed the first, the mandatory injunction could not issue
Costs
The applicant shall bear the costs of the application.
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.
In conclusion, we are satisfied that the applicant has not satisfied the two prerequisites. Accordingly, the application dated May 14, 2024 is hereby dismissed. The applicant shall bear the costs of the application.
The order being negative, as it did not order any of the parties to do anything or restrain them from doing anything is incapable of execution and thus the Court cannot order stay of execution of such negative order.
An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous.
We are aware that section 15 of the Act bars appeals to this Court from a decision of the ELC on appeal from the decision of BPRT.
Issues in the judgment
#The judgment does not print the names of the parties or a case/appeal number for the application or the intended appeal; the case title and case number are reconstructed from the body of the ruling and reference to the ruling of Mwangi, J dated 7th May 2024
The coram lists 'D. K. MUSINGA, (P)' as President of the Court of Appeal, not a Supreme Court judge; the title field records rank as JA consistent with the signature block, but the parenthetical '(P)' is not a standard rank suffix
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Musyimi v Kenya Suitcase Manufacturers Limited (Appeal E148 of 2024) [2025] KEELRC 784 (KLR)[2025] KEELRC 784 (KLR)6 Mar 2025applied
Cite this brief
#Cite this brief
Caselaw, "Muguna v Muhu Holdings Co Ltd (Civil Application E221 of 2024) [2024] KECA 1465 (KLR)", Case Analysis (2024). Notice of Motion dated 14th May 2024 (intended appeal from High Court ruling of Mwangi, J dated 7th May 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1465/eng@2024-10-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.