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Court of AppealDismissedCivil Application (Nyeri) — Motion under rule 5(2)(b) Court of Appeal Rules (judgment in Petition No. E016 of 2024 under appeal)· [2025] KECA 2098 (KLR)

Peter Kariuki Githii v County Government of Nyeri

Court of Appeal of Kenya
5 December 2025
2,002 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to suspend Nyeri's alcohol control law because the applicant showed no arguable appeal and negative dismissal orders cannot 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 (Ole Kantai, Ali-Aroni and Muchelule, JJA) dismissing a motion by Peter Kariuki Githii, with Peter Ndegwa Mwangi as interested party, seeking a temporary injunction/stay of enforcement of the Nyeri County Alcoholic Drinks Control Act, 2024 pending an intended appeal against the dismissal by Magare, J. of Petition No. E016 of 2024 (a challenge to the Nyeri County Alcoholic Drinks and Control Bill, 2023 for want of gazettement). The motion also carried omnibus prayers — including a request that the court declare the Bill/Act unconstitutional and consolidate the motion with an earlier notice of motion — which the court condemned as inconvenient and unjustifiable in a stay application. Applying Stanley Kangethe Kinyanjui v Tony Ketter, the court found no arguable appeal: the applicant had not annexed a draft memorandum of appeal or set out any grounds; the High Court petition attacked the Bill, not the enacted Act, so no ground of appeal against the Act was available; and the dismissal orders were negative orders incapable of being stayed, per Mbaruk v Mwasi, County Secretary of Kajiado v SRC and Daniel Lomagul Kandei v Kamanga Holdings. Public interest in combating illicit and lethal alcoholic drinks in Nyeri County also weighed against an injunction. Having found no arguable appeal, the court did not consider nugatory-ness. The motion was dismissed with costs to the County Government of Nyeri.

Key legal issues

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01

Whether the intended appeal was arguable

Holding

The application failed because no draft memorandum of appeal or grounds of appeal were annexed or set out, and the petition attacked the Bill, not the Act, so no ground of appeal against the Act could arguably be pursued.

Reasoning

The court noted that the applicant never annexed a draft memorandum of appeal nor identified grounds in the motion or affidavit. Further, the High Court petition targeted the Bill in its infancy; the Act now in force was not the subject of the petition, making it doubtful that any ground of appeal against the Act would be permissible.

p. 4
02

Whether the dismissal orders could be stayed

Holding

The orders dismissing the petition were negative in nature and incapable of being stayed, adopting the long line of authority cited by the court.

Reasoning

The judgment under appeal merely dismissed the petition; it did not compel anyone to do anything. Following Mbaruk v Mwasi, County Secretary of Kajiado v SRC and Daniel Lomagul Kandei v Kamanga Holdings, a negative order is incapable of being stayed, so the stay/injunction prayer failed on this ground as well.

p. 4
03

Impro omnibus prayers in a stay application

Holding

The court criticised and declined to entertain omnibus prayers seeking declarations of unconstitutionality and consolidation within a rule 5(2)(b) application.

Reasoning

The motion asked the full court to declare laws unconstitutional and to consolidate a motion not before it, which the court held was neither convenient nor justifiable and could not expeditiously adjudicate the matter. Only the stay/injunction prayer was considered.

p. 3

Legal principles established

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  • An applicant under rule 5(2)(b) must show the appeal is arguable (not frivolous) and that it would be rendered nugatory absent stay; where appropriate, the court also considers the public interest.
  • The Court of Appeal does not ordinarily stay negative orders where the High Court has not ordered anyone to do anything.
  • Failure to establish that the intended appeal is arguable disposes of the application without examining nugatory-ness.

Court orders

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  1. 1.The Motion is dismissed with costs to the respondent
On appeal from
High Court of Kenya at Nyeri (Constitutional and Human Rights Division)
HCCHR PET 016 of 2024 (originally Petition Cause No. E016 of 2024, Kerugoya, transferred by Mwongo, J. on 23rd October 2024)
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (stay of execution/injunction pending appeal)

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, "Peter Kariuki Githii v County Government of Nyeri", Case Analysis (2025). Civil Application (Nyeri) — Motion under rule 5(2)(b) Court of Appeal Rules (judgment in Petition No. E016 of 2024 under appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2098/eng@2025-12-05

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