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ELCDismissedNot stated in the judgment text· [2024] KEELC 4058 (KLR)

Gladys Karimi M'Mburugu v Jenifier Rinya Mburugu & another

High Court of Kenya
15 May 2024
CNC K Nzili
523 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~2 min to read original · ~4 min brief

The bottom line

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Kenya's High Court dismissed a stay application because you cannot stay a negative order—only enforceable orders requiring someone to act can be paused.

What this practically means

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Executive summary

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The applicant, Gladys Karimi M'Mburugu, moved the court by an application dated 12.2.2024 seeking a stay of execution of a judgment of the lower court delivered on 16.2.2023 and all consequential orders pending the hearing and determination of her appeal. She averred that auctioneers had proclaimed her household goods on 7.2.2024 pursuant to warrants of attachment and sale, that the attachment was invalid or illegal, and that continued execution would cause her substantial loss and render the appeal nugatory. The respondents, Jenifier Rinya Mburugu and Alice Chuka Mburugu, opposed the application in a joint replying affidavit, pointing out that the appellant's suit had been dismissed with costs, so there was no positive order to stay; the costs being executed were taxed at Kshs 124,319 under a final and unchallenged certificate of taxation, and no reference had been filed against it. The court set out the settled conditions for a stay: application without delay, offer of security, demonstration of substantial loss, and the interest of justice. Relying on James Wangalwa v Agnes Naliaka Cheseto, RWW v EKW and NIC Bank Ltd v Aquinas Francis Wasike & another, the court held that the trial court had issued a negative order which cannot be stayed, that the applicant offered no security, did not allege the respondents could not refund the costs, and proved nothing to show the appeal would be nugatory. The application was dismissed with costs on 15 May 2024.

Key legal issues

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01

Whether there was a stayable order

Holding

The trial court's order was negative (dismissal with costs), which cannot be stayed

Reasoning

The appellant's suit was dismissed with costs at the lower court. What remained enforceable was only the taxed costs of Kshs 124,319 under a certificate of costs that is final, binding and unchallenged. Since the respondents were not directed to do anything touching the substratum of the suit, there was no positive order capable of a stay.

p. 2
02

Whether substantial loss and security were demonstrated

Holding

The applicant failed to show substantial loss, offered no security, and gave no proof the appeal would be rendered nugatory

Reasoning

A stay applicant must apply without delay, offer security, demonstrate substantial loss and show the order is in the interest of justice. Execution is a lawful process and does not by itself constitute substantial loss. The applicant alleged the warrants were illegal without explaining how, and did not allege the respondents could not refund the costs if the appeal succeeded.

p. 2

Legal principles established

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  • Execution per se does not amount to substantial loss; a party must show what more would happen to the substratum of the appeal
  • A court cannot stay a negative order
  • Granting or refusing a stay is a discretionary balancing of the parties' interests, and an applicant must offer security

Court orders

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  1. 1.The application dated 12.2.2024 is dismissed with costs

Authorities

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Cases cited (3)

  • James Wangalwa v Agnes Naliaka Cheseto
    (2012) eKLR
  • RWW v EKW
    (2019) eKLR
  • NIC Bank Ltd v Aquinas Francis Wasike & another
    (2015) eKLR
On appeal from
Lower court (not specified)
Not stated
Jurisdiction invoked
Inherent appellate jurisdiction to stay execution pending appeal (order not specified in the judgment text)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Gladys Karimi M'Mburugu v Jenifier Rinya Mburugu & another", Case Analysis (2024). Not stated in the judgment text. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2024/4058/eng@2024-05-15

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.