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Court of AppealDismissedApplication dated 9th October 2023

Marisin v Naiguta & 4 others (Civil Appeal (Application) E126 of 2023) [2024] KECA 638 (KLR)

Court of Appeal of Kenya
7 June 2024
1,319 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal refused to pause implementation of a final Ministerial land decision because the applicant never properly challenged it through judicial review.

What this practically means

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Executive summary

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This was an application under Rule 5(2)(b) of the Court of Appeal Rules seeking a stay of implementation of the decision of the Deputy County Commissioner, Transmara West, sitting as the Minister in Land Appeal No. 268 of 1998, which awarded land parcels Transmara/Olo Sakwana 'B'/1117 and 72 to the 1st respondent. The applicant argued that the respondents intended to implement the decision before the hearing of his intended appeal, rendering it nugatory, and that he stood to lose his land and home. In a single judgment of the court delivered at Nakuru on 7th June 2024 (Warsame, Ochieng and Achode, JJA), the Court applied the settled twin principles for stay: an arguable appeal and nugatory-ness. It found no arguable appeal because the leave granted for judicial review of the Minister's decisions related only to Minister's Appeal No. 121 of 1999, not to No. 268 of 1998, and counsel conceded this on the record. The Court further held that the orders of 20th June 2023 were negative orders, being a rejection of a reinstatement application, and that negative orders cannot be stayed, citing Registered Trustees, Kenya Railways Staff Retirement Benefits Scheme v Millimo and Gitundu v Wathuku, which reaffirm Western College of Arts and Applied Sciences v Oranga. Finally, under Section 29 of the Land Adjudication Act the Minister's decision is final and can only be quashed by judicial review; judicial review having been rejected, no basis existed to stay implementation. The application was dismissed with costs to the 2nd to 5th respondents. The decision binds subordinate courts and the High Court on the principles that negative orders are incapable of being stayed and that the finality of a Minister's adjudication decision under Section 29 can only be disturbed by judicial review.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the applicant demonstrated an arguable appeal
  2. 2.Whether the appeal, if successful, would be rendered nugatory absent stay
  3. 3.Whether stay can issue in respect of negative orders
  4. 4.Whether the final decision of the Minister under Section 29 of the Land Adjudication Act can be stayed where judicial review has failed

Key legal issues

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01

Arguable appeal

Holding

The applicant failed to demonstrate an arguable appeal, particularly as he never obtained leave to institute judicial review in respect of the impugned Minister's Appeal No. 268 of 1998.

Reasoning

The Court noted that the leave granted for judicial review related only to Minister's Appeal No. 121 of 1999, not No. 268 of 1998. Counsel conceded this. As a court of record, the Court held no leave existed for the relevant decision, so no arguable appeal was demonstrated.

p. 3
02

Stay of negative orders

Holding

The orders of 20th June 2023 were negative (rejection of a reinstatement application) and are incapable of being stayed.

Reasoning

Relying on Registered Trustees, Kenya Railways Staff Retirement Benefits Scheme v Millimo and Gitundu v Wathuku, the Court reaffirmed the Western College v Oranga principle that where a court has not ordered any party to do or refrain from doing anything, there is nothing to execute and stay orders cannot issue.

p. 3
03

Finality of the Minister's decision under Section 29

Holding

The Minister's decision was final and, judicial review having failed or never been properly instituted, there was no basis to stay its implementation.

Reasoning

Under Section 29 of the Land Adjudication Act, an aggrieved party may only challenge the Minister's decision by judicial review. As the judicial review application was rejected, the finality of the Minister's decision was not under any challenge, so no legal basis for stay existed.

p. 4

Legal principles established

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  • To succeed on a Rule 5(2)(b) application an applicant must show an arguable appeal and that the appeal will be rendered nugatory absent stay.
  • Stay orders cannot issue in respect of negative orders, where the court has not ordered any party to do or refrain from doing anything.
  • A decision of the Minister under Section 29 of the Land Adjudication Act is final and can only be challenged by judicial review; absent a successful quashing, no stay of its implementation lies.

Court orders

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  1. 1.The application for stay was dismissed
  2. 2.Costs awarded to the 2nd, 3rd, 4th and 5th respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

Mohamed Abdulahi Warsame
M. WarsameJA
Currently serving
majority
majority
majority
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (stay of execution pending appeal)

Relief refused

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Stay of implementation of the Minister's decision in Land Appeal No. 268 of 1998

No arguable appeal demonstrated; negative orders cannot be stayed; the Minister's decision is final and judicial review was never properly instituted against it

p. 4

Costs

The application was dismissed, with costs to the 2nd, 3rd, 4th and 5th respondents.

Quotable passages

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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 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, to put another way, it is not frivolous and secondly that unless he is granted a stay the appeal or intended appeal, if successful will be rendered nugatory.
p. 2Rule 5(2)(b) principles
we emphasize that this is a Court of Record; and on the record, no leave was granted to the applicant to institute Judicial Review with respect to the Minister's Appeal No. 268 of 1998.
p. 3Court of record; leave for judicial review
Additionally, even if we had the requisite jurisdiction, this Court has said time without number that stay orders cannot issue in respect of negative orders, where the court has not ordered any of the parties to perform any task.
p. 3Negative orders
Accordingly, the application before us lacks merit and is therefore dismissed, with costs to the 2nd, 3rd, 4th and 5th respondents.
p. 4Final orders

Issues in the judgment

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minor

The judgment does not state the appeal number or case title in a formal heading; the application is identified only by its date of 9th October 2023, making the case title partially reconstructed from the prayer and parties.

minor

The case name of Amarnath is printed as 'Civil Appeal No. E033 of 21' with an apparently incomplete year.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Marisin v Naiguta & 4 others (Civil Appeal (Application) E126 of 2023) [2024] KECA 638 (KLR)", Case Analysis (2024). Application dated 9th October 2023. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/638/eng@2024-06-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.