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Court of AppealDismissedCivil Appeal (Application) E409 of 2024

Sarah Mbithe Kivuva t/a M Kivuva & Company Advocates v Shyoni Limited

Court of Appeal
20 December 2024
687 words in judgment
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Kiage, Korir and Odunga, JJA) dismissing a motion dated 11 June 2024 by Sarah Mbithe Kivuva t/a M Kivuva & Company Advocates seeking stay of execution of a High Court ruling by Nixon Sifuna, J. dated 15 March 2024, pending an appeal against that ruling. The ruling below had dismissed the applicant's application for review of a judgment of Njagi, J. delivered on 13 March 2010, finding the review application res judicata and an abuse of process because it duplicated an earlier, dismissed application to set aside the same judgment. The Court of Appeal held that the order sought to be stayed was a negative order incapable of execution, since it merely rejected and dismissed the review application, and that settled authority precludes stay of execution issuing against such an order, citing Western College of Arts and Applied Sciences v Oranga and Oliver Collins Wanyama v Engineers Board of Kenya. The Court further observed that any execution against the applicant would be of the 2010 judgment, against which no notice of appeal or stay application had been placed before it, leaving the Court without jurisdiction to grant a gratuitous stay. The Court also noted the motion was filed nearly four months after the impugned order, after the 90-day moratorium on execution of the 2010 judgment had expired unsatisfied. The motion was dismissed with no order as to costs. The decision below was not disturbed; the applicant remains free to pursue the intended appeal.

Questions the Court framed

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

  1. 1.Whether stay of execution can issue against the High Court's ruling of 15 March 2024 dismissing the application for review
  2. 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

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01

Whether a stay of execution may issue against an order dismissing an application

Holding

No; a dismissal is a negative order incapable of execution and stay does not lie against it.

Reasoning

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.

p. 2
02

Whether the Court could stay the 2010 decree itself

Holding

No; absent a notice of appeal or stay application against the 2010 judgment, the Court lacked jurisdiction to stay it.

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.The motion dated 11 June 2024 is dismissed
  2. 2.No order as to costs

The bench

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

majority
majority
majority
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

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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

p. 2

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

p. 2

Costs

No order as to costs

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.

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.
p. 2Stay of execution - negative orders
We therefore are bereft of jurisdiction to issue a gratuitous stay of execution against it unmoved, and properly so.
p. 2Jurisdiction - no stay without notice of appeal or application
In the result, the motion before us fails and is dismissed but with no order as to costs.
p. 2Disposition

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, "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.