Kay Construction Company Limited v Consultants (Civil Application E569 of 2023) [2024] KECA 1 (KLR)
The bottom line
#The Court of Appeal dismissed Kay Construction's attempt to halt enforcement of a Kshs 142 million award, ruling it cannot stay orders that require nobody to do anything.
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 intended appeal is arguable
- 2.Whether, if successful, the appeal would be rendered nugatory absent a stay
- 3.Whether a negative ruling dismissing stay and review applications is capable of being stayed
- 4.Whether the court has jurisdiction to stay execution of the judgment of March 25, 2022 in the absence of an appeal or notice of appeal against it
Key legal issues
#Whether the ruling of October 31, 2023 can be stayed
It cannot, save as to costs, because it merely dismissed the applicant's applications without imposing any obligation.
The ruling dismissed the applicant's applications for stay of execution and review. Apart from the award of costs, it directed no party to do or refrain from doing anything. A negative order of that nature leaves no executable or enforceable obligation capable of being stayed, so the threshold for a stay under rule 5(2)(b) cannot be met against such a decision.
Whether the court can stay execution of the judgment of March 25, 2022
It cannot; the applicant conceded there was no appeal or notice of appeal against that judgment, depriving the court of jurisdiction.
Counsel for the applicant conceded that no appeal or notice of appeal existed in relation to the March 25, 2022 judgment. Since the court's jurisdiction under rule 5(2)(b) presupposes an intended appeal, the absence of any appeal or notice of appeal meant the application to stay that judgment fell outside the court's jurisdiction and had to fail on that ground alone.
Whether the twin principles of rule 5(2)(b) were satisfied
They were not; the application was dismissed as devoid of merit.
Applying the principles from Stanley Kangethe Kinyanjui v Tony Ketter, the court held the applicant had not demonstrated an arguable appeal, nor that it would be rendered nugatory absent a stay. The application failed on both limbs, compounded by the lack of jurisdiction over the judgment itself and the negative nature of the ruling sought to be stayed.
Legal principles established
#- An applicant for stay under rule 5(2)(b) must demonstrate that the appeal is arguable and that it will be rendered nugatory if stay is not granted.
- A negative order - a ruling dismissing applications without requiring a party to do or refrain from doing anything - is incapable of stay except as regards costs.
- The Court of Appeal has no jurisdiction under rule 5(2)(b) to stay execution of a judgment against which no appeal or notice of appeal has been filed.
Court orders
#- 1.The applicant's application dated November 30, 2023 is dismissed
- 2.No orders as to costs, the respondent having not participated in the application
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- HCCC No. 60 of 2016
- Jurisdiction invoked
- rule 5(2)(b) of the Court of Appeal Rules (single Judge/panel application for stay of execution pending appeal)
Relief refused
#Stay of execution of the High Court ruling delivered October 31, 2023
The ruling was a negative order, only capable of stay as regards costs
Stay of execution of the High Court judgment delivered March 25, 2022
No appeal or notice of appeal had been filed against that judgment, so the court lacked jurisdiction
Costs
No orders as to costs, as the respondent did not participate in the application.
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 a negative order incapable of stay except as regards the award of costs.
the applicant must demonstrate that the appeal or intended is arguable and secondly that the appeal, if successful, should not be rendered nugatory
The applicant’s application dated November 30, 2023 is devoid of merit and is hereby dismissed. We make no orders as to costs as the respondent did not participate in the application.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kay Construction Company Limited v Consultants (Civil Application E569 of 2023) [2024] KECA 1 (KLR)", Case Analysis (2024). Civil Application (rule 5(2)(b)) - application dated November 30, 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1/eng@2024-01-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.