Kanybwe & 3 others v Tsuma & another (Civil Appeal 4 of 2019) [2022] KEELC 3049 (KLR)
The bottom line
#A Kenyan court cannot stay a judgment that merely dismisses an appeal, because there is nothing to enforce against you.
What this practically means
#Executive summary
#Key legal issues
#Whether there is a decision capable of being stayed
The judgment of October 19, 2021 dismissing the appeal with costs was a negative order incapable of execution and therefore incapable of stay
The court applied the long line of authority beginning with Western College of Arts and Applied Sciences v Oranga, through Kanwal Sarjit Singh Dhiman v Keshavji Juvraj Shah, Raymond M Omboga v Austine Pyan Maranga and Kaushik Panchamatia v Prime Bank, holding that an order which merely dismisses an application, without directing any party to do or refrain from doing anything or to pay any sum (save costs), is a negative order that cannot be stayed. The applicants remain in the position they were in before coming to court.
Whether the applicants demonstrated an arguable appeal and substantial loss
The applicants failed to demonstrate an arguable appeal, annexing neither a draft memorandum of appeal nor grounds of appeal, and the questions of substantial loss and nugatory appeal did not arise
Relying on the respondent's authorities including Benedict Ojuo Juma & 10 Others v A J Pereira & Sons Limited, the respondent argued, and the court accepted implicitly, that no stay can be granted where only one limb of the test is established and where the absence of a draft memorandum of appeal prevents the court from assessing arguability. Since the order was a negative one, nothing had been lost by the applicants and the substantial loss and nugatory-appeal limbs did not arise.
Legal principles established
#- A negative order - one that merely dismisses an application or suit without ordering any party to do or refrain from doing anything or to pay any sum - is incapable of execution and thus incapable of being stayed, save in respect of costs
- Where a court has no mandate to grant a stay of a negative order, an aggrieved party's remedy is to move to the next appellate level
Court orders
#- 1.The notice of motion dated November 1, 2021 seeking stay of execution of the judgment of October 19, 2021 is dismissed
- 2.Costs of the application awarded to the respondent
- On appeal from
- Magistrate's Court at Mariakani
- Not stated
- Jurisdiction invoked
- Inherent jurisdiction to grant stay of execution pending appeal to the Court of Appeal (application stated to be pending intended appeal to the Court of Appeal)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kanybwe & 3 others v Tsuma & another (Civil Appeal 4 of 2019) [2022] KEELC 3049 (KLR)", Case Analysis (2022). Not stated in the ruling. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2022/3049/eng@2022-06-13
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.