Lodwar Wholesalers v Commissioner of Investigation & Enforcement , Kenya Revenue Authority (Civil Appeal (Application) E498 of 2023) [2024] KECA 280 (KLR)
The bottom line
#Kenya's Court of Appeal ruled you cannot get a stay of a judgment that merely dismisses your case — you must ask for a stay of the orders that actually require something of you.
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 had demonstrated an arguable appeal
- 2.Whether the appeal, if successful, would be rendered nugatory absent a stay
- 3.Whether the order sought to be stayed - the High Court's dismissal of the appeal - is a positive order capable of being stayed
Key legal issues
#Whether a negative order (dismissal of an appeal) is capable of being stayed
No - a dismissal order is not a positive order requiring any party to do or refrain from doing anything; it is not capable of execution or enforcement and cannot be stayed.
Relying on George Ole Sangui v Kedong Ranch Limited, which itself cited Western College of Arts and Applied Sciences v Oranga, the Court held that a dismissal order simply determines the suit without conferring relief and therefore cannot be enforced or stayed. Since the High Court merely dismissed the applicant's appeal without directing any party to do or refrain from doing anything, there was no order capable of being stayed, and that finding disposed of the entire application.
The twin principles governing rule 5(2)(b) applications
Both limbs - arguability and nugatory effect - must be demonstrated to the Court's satisfaction before stay can be granted.
The Court reaffirmed that rule 5(2)(b) jurisdiction is original and discretionary, guided by the interests of justice, and that an applicant must show the appeal is arguable (not frivolous) and that, absent stay, a successful appeal would be rendered nugatory. Both limbs must be satisfied; the applicant's failure on the stayability of the order was fatal.
Legal principles established
#- A negative order, such as the dismissal of a suit or appeal, is not capable of being stayed or executed and an application for stay of such an order must fail
- An applicant under rule 5(2)(b) must demonstrate both that the appeal is arguable and that it will be rendered nugatory if stay is not granted
Court orders
#- 1.The application is dismissed
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the High Court judgment and decree dated 29th September 2023
The order sought to be stayed was a negative order (dismissal of the appeal) incapable of being stayed
Costs
No order as to costs - each party to bear their own costs
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.
The dismissal order cannot be enforced and is not capable of execution. It is not a positive order requiring any party to do or to refrain from doing anything.
In the motion before us, we are satisfied that the applicant seeks a stay of execution of a negative order which on the authorities is incapable of being stayed. This finding settles the application in its entirety.
Accordingly, we find this application devoid of merit and is hereby dismissed with no order as to costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Lodwar Wholesalers v Commissioner of Investigation & Enforcement , Kenya Revenue Authority (Civil Appeal (Application) E498 of 2023) [2024] KECA 280 (KLR)", Case Analysis (2024). Notice of Motion dated 25th October 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/280/eng@2024-03-08
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.