Convex Commodity Merchant Ltd & 2 others v Stanbic Bank Kenya Ltd & another (Civil Application E513 of 2025) [2025] KECA 1468 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you cannot get a stay of execution against a ruling that merely dismissed your case—you need an injunction instead.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an order of stay of execution can issue under rule 5(2)(b) in respect of a negative order (dismissal of an application) of the High Court
- 2.Whether the applicants had made out the twin considerations of arguability and nugatory-ness under rule 5(2)(b)
Key legal issues
#Whether stay of execution can issue in respect of a negative order of the High Court
No. A negative order that merely dismisses an application or suit, and which does not direct any party to do or refrain from doing anything, is not capable of execution or enforcement and cannot be stayed under rule 5(2)(b).
The court traced the consistent line of authority from Western College of Arts and Applied Sciences v Oranga through George ole Sangui v Kedong Ranch Ltd and numerous unreported decisions, holding that a dismissal order confers no relief and requires nothing of any party. Since the High Court only dismissed the applicants' injunction application, there was nothing to stay; the proper remedy against impending consequences such as an auction is an injunction under rule 5(2)(b), for which the applicants had not applied.
Whether the twin considerations for relief under rule 5(2)(b) were satisfied
Even on the merits the application failed: the applicants did not allege the 1st respondent was impecunious or incapable of compensating them should the appeal succeed, and the disputed valuation issue was properly a matter for damages.
The court applied Stanley Kang'ethe Kinyanjui v Tony Keter, holding that an applicant must satisfy both the arguability and nugatory-ness tests. The debt was not disputed; only the valuation of the suit properties was contested, and that is an issue for damages if the appeal succeeds. The applicants alleged no impecuniosity on the part of the 1st respondent, so both considerations were not met.
Legal principles established
#- The Court of Appeal will not issue an order of stay of execution under rule 5(2)(b) of a decision of a superior court below where that court has merely dismissed an application or a suit, because there is nothing to stay in a negative order which does not direct a party to do or refrain from doing anything.
- Before considering arguability and nugatory-ness under rule 5(2)(b), the court must first be satisfied that a competent application for stay is before it; a party who seeks to arrest the consequences of a negative ruling should seek an injunction, which is an express remedy under rule 5(2)(b).
Court orders
#- 1.The applicants' motion dated 20th August 2025 is dismissed with costs to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Not stated in the judgment
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Order of stay of execution of the High Court ruling and orders of 3rd July 2025 pending the intended appeal
The High Court merely dismissed the applicants' application, and a negative order dismissing an application is not capable of being stayed; in any event the twin considerations under rule 5(2)(b) were not satisfied.
Alternative prayer for maintenance of the status quo pending the intended appeal
The prayer was limited to the period before the hearing of the application and was therefore spent.
Costs
The applicants' motion dated 20th August 2025 is dismissed with costs to the respondents.
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.
It is a well established principle that this court will not, under rule 5(2)(b) issue an order of stay of execution of a decision of superior court below where such court has merely dismissed an application or a suit, because there is nothing to stay in a negative order which does not direct the applicant to do or refrain from doing something.
Before we are called upon to consider under rule 5(2) (b) whether the applicants' intended appeal is arguable and risks being rendered nugatory if it were to succeed, we must first be satisfied that we have before us a competent application in which we can validly issue orders of stay of execution as prayed by the applicants. There is no such application before us.
For the foregoing reasons, we are satisfied that the applicant's motion dated 20th August 2025 has no basis and the same is hereby dismissed with costs to the respondents. It is so ordered.
Issues in the judgment
#The case title, appeal number and neutral citation do not appear in the judgment text; the parties are referred to only as 'the applicants' and 'the respondents'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Convex Commodity Merchant Ltd & 2 others v Stanbic Bank Kenya Ltd & another (Civil Application E513 of 2025) [2025] KECA 1468 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1468/eng@2025-09-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.