Nagda v Morjaria (Civil Application E010 of 2022) [2023] KECA 967 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you cannot get a stay of execution against a court order that merely refuses something, because there is nothing to enforce or block.
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 applicant's intended appeal is arguable
- 2.Whether the intended appeal would be rendered nugatory if stay of execution of the ruling of February 3, 2022 is not granted
- 3.Whether a negative order (refusal to set aside judgment) is capable of being stayed or executed
Key legal issues
#Whether a negative order is capable of stay of execution under Rule 5(2)(b)
A negative order is unenforceable and cannot be stayed; a refusal to set aside a judgment confers no relief and requires no party to act or forbear.
The impugned ruling merely declined to set aside the judgment of June 15, 2021; it made no positive orders. Citing George Ole Sangui v Kedong Ranch Limited and Western College of Arts and Applied Sciences v Oranga, the court held that an act of dismissal or refusal cannot be stayed because there is nothing to execute. The application therefore failed on this threshold point without needing definitive findings on arguability.
The test for stay under Rule 5(2)(b)
The applicant must show the appeal is arguable (not frivolous) and that, if successful, it would be rendered nugatory absent stay; the court must not make definitive findings of fact or law at this stage.
Restating Trust Bank Limited v Investech Bank Limited and Stanley Kangethe Kinyanjui v Tony Ketter, the court reaffirmed that the jurisdiction is original and discretionary, guided by the interest of justice, and that an arguable appeal need not be one that will necessarily succeed. Nugatory-ness turns on whether what is sought to be stayed is reversible, and if not, whether damages would be adequate compensation.
Legal principles established
#- An application for stay under Rule 5(2)(b) must satisfy the twin principles that the appeal is arguable and that it would be rendered nugatory if stay is not granted.
- A negative order - one that grants no positive relief and requires no party to do or refrain from doing anything - cannot be executed and therefore cannot be stayed.
Court orders
#- 1.The application dated March 4, 2022 is dismissed with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- Nakuru ELC No. 135 of 2019
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the ruling issued on February 3, 2022 by Mutungi J in Nakuru ELC No. 135 of 2019, both pending the hearing of the application and pending the intended appeal
The ruling declined to set aside judgment and issued only a negative order, which is unenforceable and incapable of execution; there is nothing to stay
Costs
The application dated March 4, 2022 is dismissed with costs to the respondent.
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.
It is therefore, clear that the order issued in the ruling was a negative order and is thus unenforceable.
the ruling dated February 3, 2022 having culminated in a negative order, there is nothing to execute for which stay orders could be called for. Accordingly, the application dated March 4, 2022 is found to lack merit and is hereby dismissed with costs.
The jurisdiction of the Court under Rule 5(2)(b) is original and discretionary and it is trite law that to succeed, an applicant has to show firstly that his appeal or intended appeal is arguable
Issues in the judgment
#The judgment names the precedent 'Multimedia University & Another v Professor Gitile N. Naituli (Supra)' but no earlier reference to that case appears in the judgment, so '(Supra)' is a dangling reference.
The citation for George Ole Sangui v Kedong Ranch Limited contains an unmatched closing parenthesis.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Nagda v Morjaria (Civil Application E010 of 2022) [2023] KECA 967 (KLR)", Case Analysis (2023). Civil Application (Notice of Motion dated March 4, 2022) arising from intended appeal against Nakuru ELC No. 135 of 2019. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2023/967/eng@2023-07-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.