Sarah Mbithe Kivuva t/a M Kivuva & Company Advocates v Shyoni Limited
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether stay of execution can issue against the High Court's ruling of 15 March 2024 dismissing the application for review
- 2.Whether the Court has jurisdiction to stay execution of the underlying 2010 judgment in the absence of a notice of appeal or stay application against it
Key legal issues
#Whether a stay of execution may issue against an order dismissing an application
No; a dismissal is a negative order incapable of execution and stay does not lie against it.
The order sought to be stayed merely rejected and dismissed the applicant's review application. Following its settled jurisprudence, the Court held that stay of execution is directed at orders capable of execution; a negative order that rejects relief cannot be executed, so there is nothing to stay. The motion was therefore bound to fail even though the respondent filed no response.
Whether the Court could stay the 2010 decree itself
No; absent a notice of appeal or stay application against the 2010 judgment, the Court lacked jurisdiction to stay it.
Any execution against the applicant would flow from the 2010 judgment, not the 2024 ruling. The applicant had filed no notice of appeal against that judgment and no application for stay of its execution, so the Court could not, of its own motion, grant a gratuitous stay of a decree not properly before it.
Legal principles established
#- An order of stay of execution cannot issue in respect of a negative order that is incapable of execution.
- The Court will not grant a gratuitous stay of execution of a judgment against which no notice of appeal or stay application has been filed.
Court orders
#- 1.The motion dated 11 June 2024 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 of Kenya at Nairobi
- HCCC No. 116 of 2010
- Jurisdiction invoked
- Inherent appellate jurisdiction to grant stay of execution pending appeal (rule invoked not stated in the ruling)
Relief refused
#Stay of execution of the High Court ruling of 15 March 2024 pending appeal
The ruling was a negative order incapable of execution; stay cannot issue against it
Stay of execution of the underlying judgment of 13 March 2010
No notice of appeal or stay application was placed before the Court in respect of that judgment
Costs
No order as to 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.
It was a negative order and this Court has said, time without number, that an order of stay of execution cannot issue directed at a negative order incapable of execution.
We therefore are bereft of jurisdiction to issue a gratuitous stay of execution against it unmoved, and properly so.
In the result, the motion before us fails and is dismissed but with no order as to costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Sarah Mbithe Kivuva t/a M Kivuva & Company Advocates v Shyoni Limited", Case Analysis (2024). Civil Appeal (Application) E409 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1958/eng@2024-12-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.