Mparo & 5 others v Mathare Investments & Properties Limited (Civil Application E057 of 2021) [2023] KECA 114 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you cannot get a stay of a judgment that simply dismissed your suit — there is nothing to stay.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicants have an arguable appeal
- 2.Whether the appeal, if successful, would be rendered nugatory absent stay
- 3.Whether there is an order capable of being stayed, the suit having been dismissed
Key legal issues
#Whether a stay can issue of a judgment that dismissed the suit
No; a dismissed suit yields only a negative order with nothing to stay except costs.
Following Western College of Arts & Applied Sciences v Oranga, the court held that where the High Court has merely dismissed a suit without ordering any party to do or refrain from doing anything, there is nothing arising from the judgment capable of enforcement or restraint by injunction on a stay application. The applicants' adverse possession suit having been dismissed, no stay of the judgment could issue.
The twin principles governing Rule 5(2)(b) applications
The applicant must demonstrate an arguable appeal and that the appeal would be rendered nugatory absent stay.
The court restated the settled principles from Stanley Kang'ethe Kinyanjui v Tony Keter: the discretion under Rule 5(2)(b) is wide but must be exercised justly; one bona fide arguable ground suffices; the meaning of 'nugatory' includes reversible or uncompensable outcomes; and the court must not make definitive findings of fact or law at the interlocutory stage. The applicants failed to satisfy these principles on the facts.
Legal principles established
#- An applicant under Rule 5(2)(b) must satisfy both twin principles: an arguable appeal and that the appeal would be rendered nugatory absent stay.
- Where the court below merely dismissed a suit, there is no positive order to be stayed; execution can only lie in respect of costs.
Court orders
#- 1.The Notice of Motion dated February 18, 2021 is dismissed
- 2.The applicants to pay the costs of the motion
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment & Land Court
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, with Order 40 Rule 1 and Order 51 Rule 1 of the Court's Rules
Relief refused
#Stay of the judgment of May 15, 2020 and injunction restraining eviction from Title Number Kajiado/Kaputiei-South/45
The suit was dismissed, so there was no positive order capable of being stayed; the twin principles of arguability and nugatory-ness were not satisfied
Costs
The motion was dismissed with costs to the respondents.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Similarly, we find nothing in the instant application warranting an order of stay. We dismiss the motion with costs.
The High Court had not ordered any of the parties to do anything or to refrain from doing anything or to pay any sum. There is nothing arising out of the High Court judgment for this Court in an application for stay to enforce or refrain by injunction.
An applicant must satisfy the court on both of the twin principles.
An arguable appeal is not one which must necessarily succeed, but one which ought to be argued fully before the court; one which is not frivolous.
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.
Issues in the judgment
#The judgment does not state the names of the parties in the case caption or the appeal number; the parties are identified only through the affidavits and submissions.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mparo & 5 others v Mathare Investments & Properties Limited (Civil Application E057 of 2021) [2023] KECA 114 (KLR)", Case Analysis (2023). Civil Application (Rule 5(2)(b) motion dated February 18, 2021). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/114/eng@2023-02-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.