Gikonyo & another v Wambui
The bottom line
#Kenya's Court of Appeal confirmed you cannot get a stay of execution against a dismissal, because a dismissal is a negative order with nothing to enforce.
What this practically means
#Executive summary
#Key legal issues
#Whether stay of execution can issue against an order of dismissal
No - a dismissal is a negative order; there is nothing to execute or stay, save perhaps costs.
The court applied its long-standing jurisprudence, including Western College of Arts and Applied Sciences v EP Oranga, holding that where the High Court has not ordered any party to do, refrain from doing, or pay anything, there is nothing arising from the judgment capable of being stayed. The applicants therefore ran into an insurmountable threshold obstacle.
Whether the intended appeal was arguable under Rule 5(2)(b)
The court doubted arguability because the appeal raised only matters of fact, beyond a second appeal confined to points of law.
The court noted that the intended appeal basically raised matters of fact, whereas a second appeal lies on points of law only. On that basis it harboured doubt whether the appeal was arguable, and found the first hurdle of the Rule 5(2)(b) test unsurmounted, making it unnecessary to consider whether the appeal would be rendered nugatory.
Legal principles established
#- A dismissal is a negative order incapable of execution and therefore incapable of stay; stay of execution lies only against positive orders.
- An applicant under Rule 5(2)(b) must first demonstrate an arguable appeal; failing that, the court need not consider the nugatory-ness limb.
Court orders
#- 1.Dismissal of the application for stay of execution with costs to the respondent
- On appeal from
- High Court of Kenya at Nanyuki
- Civil Appeal No. 3 of 2020
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Gikonyo & another v Wambui", Case Analysis (2022). Civil Application E019 of 2022. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2022/1033/eng@2022-09-23
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.