Peter Kariuki Githii v County Government of Nyeri
The bottom line
#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
#Executive summary
#Key legal issues
#Whether the intended appeal was arguable
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.
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.
Whether the dismissal orders could be stayed
The orders dismissing the petition were negative in nature and incapable of being stayed, adopting the long line of authority cited by the court.
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.
Impro omnibus prayers in a stay application
The court criticised and declined to entertain omnibus prayers seeking declarations of unconstitutionality and consolidation within a rule 5(2)(b) application.
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.
Legal principles established
#- 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
#- 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
#Practical implications
#Frequently asked questions
#Cite this brief
#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.