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Court of AppealDismissedNotice of Motion dated 6th August 2024 (Civil Appeal from ELC No. 19 of 2019, formerly Meru HC ELC No. 37 of 2013)

Wakarima v Mutea (Civil Application E072 of 2024) [2025] KECA 399 (KLR)

Court of Appeal of Kenya
28 February 2025
1,486 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 refused to preserve a disputed Meru plot's status quo, ruling that a court's refusal to grant a stay is a 'negative order' nothing can be stayed.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nyeri (Kantai, Lesiit and Ali-Aroni, JJA) on a Notice of Motion dated 6th August 2024 by Mary Wakarima seeking status quo over Plot No. 10b within Meru Municipality pending appeal, or alternatively an injunction restraining Rael Gatabira Mutea from interfering with the suit area. The application arose from the ruling of Nzili, J. of 31st July 2024, which dismissed her application to stay the judgment of the Meru Chief Magistrate's Court (Nyambo, CM) of 30th January 2024 in ELC No. 19 of 2019, which declared the respondent proprietor of Plot No. 9 and issued injunction and eviction orders against the applicant. The Court first confirmed its competence under rule 5(2)(b), the applicant having filed a notice of appeal dated 1st August 2024. It then applied the twin principles of arguability and nugatory-ness. It held that the ruling of Nzili, J. was a negative order — merely declining to exercise discretion — which did not order or restrain any party and was therefore incapable of execution, citing Kanwal Sarjit Dhiman v Keshavji Jivraj Shah, Western College of Arts & Applied Sciences v Oranga, Co-operative Bank of Kenya Ltd v BIFU and Lake Victoria South Water Service Board v Oyiengo. The Court was further not satisfied the appeal was arguable, and held that any prejudice to the applicant's hotel business was compensable by damages. The Court dismissed the motion with costs to the respondent on 28th February 2025. The decision below was not disturbed; the appeal against the ruling remains pending.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the application is competent, i.e. whether a notice of appeal was filed against the ruling sought to be stayed
  2. 2.Whether the intended appeal is arguable
  3. 3.Whether the appeal, if successful, would be rendered nugatory if the orders sought are not granted

Key legal issues

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01

Competence of a rule 5(2)(b) application

Holding

The application was competent because the applicant demonstrated that she filed a notice of appeal dated 1st August 2024.

Reasoning

Jurisdiction under rule 5(2)(b) depends on a notice of appeal having been filed against the decision sought to be stayed, as confirmed in Halai & Another v Thornton & Turpin (1963) Ltd. The applicant satisfied this threshold requirement.

p. 2
02

Executability of the order sought to be stayed

Holding

The ruling of Nzili, J. merely declined to exercise discretion and was a negative order incapable of execution, so there was nothing to stay.

Reasoning

The ELC ruling dismissed the applicant's stay application without ordering any party to do or refrain from doing anything. Relying on Kanwal Sarjit Dhiman v Keshavji Jivraj Shah and Co-operative Bank of Kenya Ltd v BIFU, the Court held such negative orders cannot be stayed, save as to costs.

p. 3
03

Arguability and nugatory-ness

Holding

The Court was not satisfied the appeal was arguable and held that it would not be rendered nugatory if the orders were declined.

Reasoning

Applying the twin principles, the Court found the appeal unlikely to succeed and further held that any loss the applicant might suffer in her hotel business could be compensated by damages, so the nugatory limb failed independently.

p. 3

Legal principles established

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  • Jurisdiction under rule 5(2)(b) to stay a judgment or decree is contingent on a notice of appeal having been filed against the ruling in question.
  • A negative order — one that neither orders performance by nor restrains any party — is incapable of execution and cannot be stayed.
  • The twin principles for a stay under rule 5(2)(b) are that the appeal is arguable and that it would be rendered nugatory if the order is not granted.
  • Where any prejudice suffered by an applicant is compensable by an award of damages, the nugatory-principle limb is not satisfied.

Court orders

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  1. 1.Dismissal of the Notice of Motion dated 6th August 2024 with costs to the respondent

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Environment and Land Court
ELC No. 19 of 2019 (Formerly Meru HC ELC No. 37 of 2013)
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Order of status quo allowing the applicant to remain in occupation and use of Plot No. 10b pending appeal; alternatively an injunction restraining the respondent from interfering with the suit area

The order sought to be stayed was a negative order incapable of execution, the appeal was not arguable, and any prejudice is compensable by damages

p. 3

Costs

The Notice of Motion dated 6th August 2024 was dismissed with costs to the respondent.

Quotable passages

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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 the circumstances therefore we find the Notice of Motion dated 6th August 2024 devoid of merit and accordingly dismiss it with costs to the respondent.
p. 3Final orders – dismissal with costs
There is nothing to stay as the order made by the learned Judge was a negative order.
p. 3Negative orders incapable of execution
What the applicant needs to demonstrate in order to obtain the orders sought is the fulfilment of the twin principles: one, that the appeal is arguable and, two, that it is likely to be rendered nugatory if the application is declined
p. 2Twin principles for stay under rule 5(2)(b)
It is trite law that the applicant need not show a multiplicity of arguable points. One arguable point is suficient to satisfy the first principle.
p. 2Standard of arguability (quoting Somak Travels Ltd v Gladys Aganyo)
We are satisfied that the applicant will not be prejudiced and stands to sufier nothing that cannot be compensated by an award of damages.
p. 3Damages as an adequate remedy

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, "Wakarima v Mutea (Civil Application E072 of 2024) [2025] KECA 399 (KLR)", Case Analysis (2025). Notice of Motion dated 6th August 2024 (Civil Appeal from ELC No. 19 of 2019, formerly Meru HC ELC No. 37 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/399/eng@2025-02-28

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