M’Mutea & 5 others v Waruiru & 2 others (Civil Appeal (Application) E108 of 2024) [2025] KECA 2138 (KLR)
The bottom line
#The Court of Appeal refused to pause a land dispute ruling, confirming that a judgment that simply dismisses a case cannot be stayed because there is nothing to enforce.
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 applicants demonstrated an arguable appeal for purposes of Rule 5(2)(b)
- 2.Whether the intended appeal would be rendered nugatory if stay of execution is not granted
- 3.Whether a stay can issue where the judgment below is a negative order incapable of execution
- 4.Whether an injunction restraining the respondents from dealing with the suit property should issue pending appeal
Key legal issues
#Twin principles for stay under Rule 5(2)(b)
An applicant must demonstrate an arguable appeal and that the appeal will be rendered nugatory absent stay; the applicants failed on both limbs
The applicants filed no draft memorandum of appeal and did not articulate intended grounds, so the Court could not assess arguability. On the nugatory limb, the only threatened action was the pursuit of costs, which are refundable and therefore incapable of rendering an appeal nugatory.
Stay of negative orders
Where the trial court dismissed the suit and ordered nothing to be done, the judgment is a negative order incapable of execution and there is nothing to stay
The Court adopted its earlier pronouncements in Nthiga v Keeru and the authorities there cited, noting the trial court had merely dismissed the suit with costs, so any execution could only relate to costs, which are not the subject of a stay of execution under Rule 5(2)(b).
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy the twin principles of an arguable appeal and the appeal being rendered nugatory without stay
- A single arguable point suffices and the applicant need not show it would succeed
- A judgment dismissing a suit without ordering the parties to do or refrain from doing anything is a negative order incapable of execution and incapable of stay
- Payment of costs cannot render an intended appeal nugatory because costs paid are recoverable
Court orders
#- 1.The application dated 20th November 2024 is dismissed
- 2.Costs of the application awarded to the respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- Meru ELC Case No. E024 of 2021
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022
Relief refused
#Stay of execution of the judgment of the ELC
Applicants failed to satisfy the twin principles under Rule 5(2)(b): no draft memorandum of appeal or grounds were annexed and the dismissal of the suit was a negative order incapable of execution
Injunction restraining the respondents from alienating or dealing with parcel KIAMURI "A"/611
The application failed on both limbs; there was no evidence the suit property was being alienated, and the trial court had ordered nothing positive capable of being stayed or enjoined
Costs
Costs of the application awarded to the 1st and 2nd 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.
In the end, the applicants having failed to satisfy the twin principles, we find the application devoid of merit and dismiss it with costs to the respondents.
What was therefore issued is in the nature of a negative order incapable of execution, and as such, there is nothing to stay.
an applicant need not show a multiplicity of arguable points, as one arguable point would sufice
Costs, if paid out to the respondents, are recoverable should the intended appeal succeed. Indeed, payment of costs cannot render the intended appeal nugatory
Issues in the judgment
#The judgment does not state the names of the parties or the case number; the applicants are identified only through the deponent John Riungu M'Mutea, and the respondents are unnamed
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "M’Mutea & 5 others v Waruiru & 2 others (Civil Appeal (Application) E108 of 2024) [2025] KECA 2138 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2138/eng@2025-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.