Josephat Sirma v Jared Kiprotich Mutai & 3 others

The applicant founded the motion on Order 42 Rules 6 & 7 and Order 51 of the Civil Procedure Rules. The Court, of its own motion and before the merits, reminded parties that it is a creature of the Appellate Jurisdiction Act and only that statute's dictates govern it. Rather than strike out the motion for the wrong legal basis, the Court elected, in the interest of justice, to consider it on its merits under the test laid down for such applications. The point did not itself dispose of the motion.

The Court reiterated its settled position that negative orders cannot be stayed, citing Western College of Arts and Applied Sciences v Oranga, where the High Court had merely dismissed the suit with costs so that any execution could only be in respect of costs, and Kimanthi v Kiiva. Because the learned Judge made no positive order, there was nothing capable of execution or stay. This threshold answer disposed of the motion without more, rendering the twin principles unnecessary to determine.

The Court set out the governing test from Stanley Kang'ethe Kinyanjui v Tony Ketter: an applicant must satisfy both that the appeal is arguable – raising a bona fide point worthy of consideration, not one that must necessarily succeed – and that it will be rendered nugatory if stay is not granted. Having concluded that no stay could issue in respect of a negative order, the Court expressly declined to make any finding on the twin principles, so no determination on arguability or nugatory aspect was made.