James Kariuki Kahiro & 7 others v The County Government of Nyeri

us with the notice of motion dated 1st July 2025 seeking stay of execution and conservatory orders restraining the respondent from implementing or enforcing the Executive Order pending the hearing and determination of their intended appeal. 2. In the grounds set forth by the 1st applicant on behalf of the other applicants, the applicants averred that they have filed a notice of appeal and their intended appeal is valid. They deposed that the learned Judge ignored concerns about inadequate public participation, discrimination, and violation of their rights to property and livelihood. According to the applicants, the appeal raises significant questions regarding public participation, fair administrative action, and the rights of vulnerable transport workers. They expressed concern that the respondent had started enforcing the Executive Order before the implementation date, 1st August 2025, posing an immediate risk of eviction and disruption of their livelihoods. They deposed that without stay of execution and conservatory orders, the appeal would be rendered moot, leading to severe economic loss and social instability for public service vehicle operators and their families. The applicants asserted that public interest supported the granting of the orders sought to prevent economic disruption and social dislocation arising from a hasty relocation. 3. The respondent opposed the motion through the replying affidavit sworn on 10th July 2025 by Kimani Rucuiya, its Acting County Secretary, who also serves as the County Attorney. It is averred that the prayer for conservatory orders offends the provisions of rule 5 (2) (b) of the Court of Appeals Rules, 2022, which only provides for the issuance of an order for stay of execution, an injunction, or a stay of any further proceedings. According to the respondent, the High Court provided a meaningful framework for relocation, which gives the applicants sufficient time to relocate, and a conservatory order was, therefore, not necessary. With respect to the prayer for a stay of execution, the respondent maintained that the judgment of the High Court resulted in a negative order, hence, an order of stay could not issue. On a without prejudice basis, the respondent contended that the motion did not meet the established principles for staying execution since the applicants have not demonstrated the existence of an arguable appeal. It was further averred that the applicants have not established that they will otherwise suffer irreparable injury, which cannot be compensated by an award of damages. Further, that granting the orders sought would result in public disorder and chaos since only 8 out of 25 PSV saccos have challenged the decision to relocate. The respondent asserted that the intended relocation will be reversible should the appeal succeed, hence the applicants will not suffer irreparable loss. We were, therefore, urged to dismiss the application without costs, given the public interest involved. 4. At the hearing of the application, learned counsel Mr. Waweru Kiragu and Kinyua Irungu, respectively, appeared for the applicants and respondents. Counsel, having filed written submissions, orally highlighted them during the hearing. 5. Urging the applicants’ case, learned counsel, Mr. Kiragu referred to the holdings in Kenya Tea Growers Association & Another vs. Kenya Plantation and Agricultural Workers Union [2012] KECA 231 (KLR) and Stanley Kangethe Kinyanjui vs. Tony Ketter & 5 Others [2013] KECA 378 (KLR) to outline that an applicant seeking an order under rule 5(2)(b) must not only establish an arguable appeal but also demonstrate that should the order sought be declined, the intended appeal or appeal will be rendered nugatory. Learned counsel also referred to Samiyan Kaur Devinder Singh vs. Speedway Investments Ltd & Another [2014] KECA 355 (KLR) to highlight the Court’s inherent power to issue orders, including conservatory orders, in the interest of justice. On the arguability of the intended appeal, learned counsel pointed to the draft memorandum of appeal to urge that the intended appeal is arguable. As regards the nugatory aspect, counsel submitted that without conservatory orders, the relocation will dismantle businesses, redistribute routes, destroy clientele, and permanently breach rights related to property (Article 40), livelihood (Article 43) and equality (Article 27), which are not https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2145/eng@2025-11-28 2

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compensatable by damages. Counsel also referred to Executive Super Rides Limited & another vs. NCBA Bank of Kenya PLC; Regent Auctioneers (Interested Party) [2025] KECA 1171 (KLR) to support the proposition that eviction is prejudicial and cannot be compensated by damages. 6. Responding to the application, learned counsel Mr. Irungu urged for its dismissal, contending that a negative order cannot be stayed. Arguing that the intended appeal will not be rendered nugatory should it eventually succeed, counsel argued that the relocation is reversible and monetary compensation will suffice. Counsel relied on Kenya Hospitals Association t/a Nairobi Hospital vs. Kenya Medical Practitioners, Pharmacists and Dentists Union & Another [2025] KECA 1133 (KLR) to assert that the Court cannot grant a stay of execution after the dismissal of a suit or application, as this would amount to staying a negative order. 7. We have read the application as well as the submissions by counsel. The issue for the determination of this Court is whether the applicants have met the threshold for the grant of the orders sought. 8. The respondent raised two objections to the application: first, that conservatory orders are not available under rule 5(2)(b), and secondly that an order of stay of execution cannot issue against a negative order. Even without engaging ourselves in the debate by the parties as to whether conservatory orders are available under rule 5(2)(b), we, upon perusal of the judgment note that despite dismissing the petition, the learned Judge went ahead to issue directions on how the relocation would take place. The respondent, therefore, had actions to take in compliance with the judgment and it cannot therefore be said that the result of the judgment was negative in nature. We will therefore proceed to determine whether an order staying the execution of the trial court’s judgment is available in the circumstances of this case. This will also cover the supplication for conservatory orders. 9. In ascertaining whether the intended appeal is arguable, we have looked at the memorandum of appeal annexed to the motion. The applicants intend to several grounds of appeal. A cursory look at the grounds reveals that at the centre of the appeal is the interpretation and enforcement of constitutional rights, which the applicants allege to have been violated. Considering that the threshold of an arguable appeal is a low one and that a single point worthy of the Court’s consideration is sufficient to render an appeal arguable, we find that the applicants’ intended appeal arguable. 10. Turning to the question of whether the intended appeal, if eventually successful, would be rendered nugatory, we fall back on Stanley Kangethe Kinyanjui vs. Tony Ketter & 5 Others (supra) as to what it means for an appeal to be rendered nugatory. Therein, the Court held that: 11. “ ix) The term “nugatory” has to be given its full meaning. It does not only mean worthless, futile or invalid. It also means trifling. Reliance Bank Ltd vs. Norlake Investments Ltd [2002] 1 EA 227 at page 232. x) Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.” We appreciate that in the absence of the sought-after orders, the applicants will be relocated to the new bus park. They contend that such a move will lead to disarray and loss of livelihoods. On the other hand, the respondent has stated that in the event the appeal succeeds, the applicants will be relocated to the current terminus and that any loss incurred will be quantifiable and can be compensated by way of damages. The respondent also contend that, apart from the applicants, the majority of the PSV saccos have not challenged the judgment and are willing to relocate to the new station. https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2145/eng@2025-11-28 3

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12. In our view, we do not think that relocation of the applicants will render the appeal nugatory. The applicants, even if relocated, will still have access to the old station should the appeal succeed. Any loss suffered by the applicants during the relocation process can always be mitigated by an award of damages. Additionally, when determining whether the applicants have met the threshold on the nugatory aspect, we must consider the context of the dispute. In this case, it is not disputed that, apart from the applicants, the majority of the transporters have not challenged the finding by the learned Judge. Much as the applicants’ constitutional rights cannot be subsumed under those of the majority, allowing the applicants to remain in the old terminus while others are relocated will result in disarray. 13. We are therefore not persuaded that, should the intended appeal succeed, it would be rendered nugatory. Any loss suffered by the applicants would be quantifiable and assessable for purposes of compensation by way of damages. Accordingly, we do not find merit in the application, and we hereby dismiss it. The respondent having been gracious on the issue of costs, we direct the parties to meet their own costs in respect to the motion. DATED AND DELIVERED AT NYERI THIS 28TH DAY OF NOVEMBER 2025. P. O. KIAGE ........................ JUDGE OF APPEAL A. O MUCHELULE ........................ JUDGE OF APPEAL W. KORIR ........................ JUDGE OF APPEAL I certify that this is a True copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2145/eng@2025-11-28 4

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