Gnecchi-Ruscone v Estate of Hermanus Phillipus Steyn (Civil Application E400 of 2025) [2025] KECA 2124 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause a High Court fraud ruling because declarations and restraining orders cannot legally be stayed under Rule 5(2)(b).
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)
- 2.Whether, absent a stay of execution, the intended appeal would be rendered nugatory
- 3.Whether the declarations and restraining injunction issued by the High Court are positive orders capable of execution and therefore capable of being stayed
- 4.Whether an order as to costs alone can be stayed of execution
- 5.Whether the Court can grant a stay of proceedings of the ordered retrial where none was sought
Key legal issues
#Arguability of the intended appeal
The intended appeal is arguable; the threshold for arguability is deliberately low and an arguable point need not necessarily succeed.
The Court found the draft memorandum raised plausible arguments about whether the High Court could set aside a judgment affirmed by the Court of Appeal, offend the principle of finality, and sit on appeal over a coordinate court's judgment. The Court refused to delve into the merits, which must await the appeal proper.
Whether the impugned orders are capable of being stayed
The declaratory orders and the restraining injunction issued by the High Court are not positive orders, are unexecutable and cannot be stayed under Rule 5(2)(b).
The declarations merely stated answers and resolved questions; they required no party to do or refrain from doing anything or pay any sum. The injunction restrained the applicant from executing the fraud-tainted judgment - a restraining, not mandatory, injunction. A stay does not reverse or undo what has been done but merely suspends performance; it cannot issue against a negative order.
Whether a stay can issue in respect of costs alone
No; costs stand alone and are not part of the judgment or decree, so an order as to costs alone cannot attract a stay of execution.
Costs are grantable to the successful party and are governed by their own regime of taxation, reference to a Judge and appeal under the Advocates Remuneration Order, which provides adequate remedies. The Court reiterated its half-century-old holding in Mandavia that a direction to pay costs is not itself sufficient to bring an order within the definition of a judgment requiring payment of money.
Access to court by a litigant adjudged to have obtained judgment by fraud
The Court declined to deny the applicant audience on grounds of unclean hands, holding that the right to fair hearing by appellate review requires that he be heard, with the fraud findings to be interrogated at the hearing of the appeal.
While agreeing that obtaining judgment by fraud strikes at the heart of the administration of justice and endorsing the view that judges should be slow to favour litigants who use court process as an instrument of fraud, the Court held that the correctness of the fraud findings is a matter for the appeal bench, not the stay court. The applicant had exercised his undoubted right of appeal.
Legal principles established
#- A stay of execution under Rule 5(2)(b) may issue only against a positive order capable of execution; declarations and restraining (non-mandatory) injunctions are unexecutable and cannot be stayed.
- An order for the payment of costs alone, without a substantive order requiring stay, is not capable of being stayed because costs are not part of the judgment or decree.
- A court has no jurisdiction to grant to a party prayers not sought by that party; doing so would be gratuitous overreach.
- A stay of execution cannot be granted where its effect would be to reverse, at the interlocutory stage, that which was decided by the High Court before the appeal itself is heard.
- An applicant under Rule 5(2)(b) must satisfy the twin principles of an arguable appeal and that the appeal would be rendered nugatory absent the orders sought.
Court orders
#- 1.The motion dated 4th July 2025 is dismissed with costs to the respondent
- 2.The intended appeal, once filed, be accorded priority
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- High Court Commercial Case No. E291 of 2013, Hermanus Phillips Steyn v Giovanni Gnecchi-Ruscone
- Jurisdiction invoked
- Rules 5(2)(b), 42 and 43 of the Court of Appeal Rules, 2020
Relief refused
#Stay of execution of the judgment of Mugambi J delivered 16th May 2025
The orders issued by the High Court were declarations and a restraining injunction - not positive orders - and are unexecutable and thus not capable of being stayed
Order that the respondent deposit USD 1,206,015.25 plus interest into a joint interest-earning account as security
No positive executable order exists to which a security deposit could attach; the judgment that gave rise to the decretal sum was nullified for fraud
Stay of execution of costs (Kshs. 501,295,720 claimed in the party and party bill of costs)
Costs stand alone, are not part of the judgment or decree, and are governed by a separate taxation regime; a direction to pay costs alone cannot be stayed
Stay of proceedings in respect of the ordered retrial
Not sought by the applicant; the Court cannot grant prayers not sought
Costs
The application is dismissed with costs to the respondent.
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.
The upshot of our consideration of this application is that it is devoid of merit and fails. The same is dismissed with costs to the respondent.
We think that in it in the interest of justice and certainty that the intended appeal once filed be accorded priority.
In short, the orders given by the learned Judge were not positive orders, are unexecutable and are, therefore, not capable of being stayed by this Court under Rule 5 (2) (b).
A ‘stay’ does not reverse, annul, undo or suspend what already has been done or what is not specifically stayed nor pass on the merits of orders of the trial court, but merely suspends the time required for performance of the particular mandates stayed, to preserve a status quo pending appeal
the Court has no jurisdiction to grant to a party prayers not sought by that party. That would be a case of gratuitous overreach on the part of the Court, and it would be acting devoid of jurisdiction.
In the instant case the High Court has not ordered any of the parties to do anything, or refrain from doing anything or to pay any sum. There is nothing arising out of the High Court judgment for this court, in an application for a stay, to enforce or to restrain by injunction
Issues in the judgment
#Internal inconsistency on the dates of death of the original respondent: the applicant's affidavit avers death on 29th May 2024 while the respondent's affidavit avers death on 24th June 2024.
Internal inconsistency on the chronology of the prior litigation: the judgment states judgment was entered by Waweru, J. on 7.9.17 yet describes the respondent's appeal as Civil Appeal No. 171 of 2009, an appeal number predating the judgment it challenged; the appeal is elsewhere described as dismissed on 22.10.10.
Typographical error in the citation of Macfoy vs. United Africa Co. Ltd, printed as [1061] 3 All ER 1169.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gnecchi-Ruscone v Estate of Hermanus Phillipus Steyn (Civil Application E400 of 2025) [2025] KECA 2124 (KLR)", Case Analysis (2025). Civil Application (Motion dated 4th July 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2124/eng@2025-12-05
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.