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Court of AppealDismissedNot stated in judgment

Leo Designs Limited v Maina (Civil Appeal (Application) E515 of 2023) [2025] KECA 78 (KLR)

Court of Appeal of Kenya
24 January 2025
FSF. SichaLEFTF. TuiyottFOF. Ochieng
1,682 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal refused to stop execution of a judgment because the company never filed an appeal against that specific judgment.

What this practically means

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Executive summary

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Leo Designs Limited moved the Court of Appeal under Rule 5(2)(b) of the Court of Appeal Rules and Sections 3, 3A and 3B of the Appellate Jurisdiction Act seeking stay of execution of a judgment delivered on 29th September 2021 in Cause No. 144 of 2021 and the resultant decree, and, in the alternative, an order of status quo ante 18th July 2024, pending an intended appeal. The intended appeal was against a ruling of 30th June 2022 by which the trial court declined to set aside the judgment. The respondent opposed, arguing there was no appeal against the 2021 judgment, that the trial court's discretion was judiciously exercised, that the application was an afterthought marked by inordinate delay, and that the decree was a money decree capable of restitution. The Court held that its Rule 5(2)(b) jurisdiction is original, independent and discretionary but must be exercised judiciously, and that it presupposes a notice of appeal lodged under Rule 77 against the decision whose execution is to be stayed. As no notice of appeal was filed against the judgment of 29th September 2021, the Court lacked jurisdiction to stay its execution; moreover, an order staying execution would operate in perpetuity. The Court further held that the ruling of 30th June 2022 was a negative order, directing nothing and leaving the parties as they were, and therefore incapable of execution. The application was dismissed with costs to the respondent.

Questions the Court framed

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

  1. 1.Whether the application under Rule 5(2)(b) for stay of execution of the judgment dated 29th September 2021 is merited

Key legal issues

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01

Whether the Court has jurisdiction under Rule 5(2)(b) to stay execution of a judgment against which no notice of appeal was filed

Holding

It does not. Rule 5(2)(b) jurisdiction presupposes a notice of appeal lodged in accordance with Rule 77 against the decision whose execution is to be stayed; no such notice was filed against the 29th September 2021 judgment.

Reasoning

The Court restated that its Rule 5(2)(b) jurisdiction is original, independent and discretionary but must be exercised judiciously. The notice of appeal on record relates only to the ruling of 30th June 2022 declining to set aside the judgment. Since no appeal was preferred against the judgment of 29th September 2021, stay of that judgment cannot be sustained; such an order would operate in perpetuity and remove any incentive to appeal.

p. 4
02

Whether the ruling of 30th June 2022 dismissing the application to set aside judgment is executable

Holding

No. The ruling left the parties in the position they were in when the application was filed; it was a negative order incapable of execution, so no stay of it could issue.

Reasoning

The applicant's affidavit described the intended appeal as being against the ruling of 30th June 2022, which dismissed its application to set aside the judgment of 29th September 2021. The Court observed that this ruling did not direct either party to do anything and left the parties as they were. Being a negative order incapable of execution, there was nothing to stay in respect of that ruling either.

p. 4

Legal principles established

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  • The Court of Appeal has no jurisdiction under Rule 5(2)(b) to order a stay of execution of a judgment against which no notice of appeal has been lodged in accordance with Rule 77.
  • A ruling that merely declines to set aside a judgment and does not direct either party to do anything is a negative order incapable of execution.

Court orders

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  1. 1.The application dated 23rd July 2024 is dismissed
  2. 2.Costs of the application awarded to the respondent

The bench

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

FS
majority
FT
majority
FO
majority
On appeal from
Employment and Labour Relations Court (trial court, Cause No. 144 of 2021)
Cause No. 144 of 2021
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules and Sections 3, 3A & 3B of the Appellate Jurisdiction Act

Relief refused

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Stay of execution of the judgment dated 29th September 2021 and the resultant decree and stay of any further proceedings in Cause No. 144 of 2021

No appeal was preferred against the judgment of 29th September 2021, so the Court lacks jurisdiction to stay its execution; the ruling of 30th June 2022, against which the appeal lies, was a negative order incapable of execution.

p. 4

Alternative order of status quo ante 18th July 2024

The application was found unmerited and dismissed in its entirety.

p. 5

Costs

The application is dismissed with costs to the respondent.

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.

as no appeal was preferred against the judgment of 29th September 2021, we find that this Court lacks jurisdiction to entertain the application for stay of execution of a judgment against which no appeal was preferred
p. 4Absence of jurisdiction under Rule 5(2)(b) absent a notice of appeal against the decision to be stayed
It left the parties in the same position they were in at the time the application was filed. It was a negative order and incapable of execution
p. 4Negative orders incapable of execution
If the court ordered that the execution be stayed pending the hearing and determination of the appeal, such an order would be in perpetuity, and the applicant would have no reason to institute an appeal after the execution is stayed
p. 4Absurdity of staying execution of a judgment under appeal-free proceedings
Consequently, the application is dismissed with costs to the respondent. Orders accordingly
p. 5Final orders - dismissal with costs

Issues in the judgment

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minor

The coram as printed reads 'F. SICHALE' while the other judges are F. TUIYOTT and F. OCHIENG; the surname spelling 'SICHALE' appears unusual and may be a transcription error in the copy certified by the Deputy Registrar.

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, "Leo Designs Limited v Maina (Civil Appeal (Application) E515 of 2023) [2025] KECA 78 (KLR)", Case Analysis (2025). Not stated in judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/78/eng@2025-01-24

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