Mary Wakarima v Rael Gatabira Mutea
The bottom line
#Kenya's Court of Appeal refused to preserve a disputed Meru plot's status quo, ruling that a court's refusal to grant a stay is a 'negative order' nothing can be stayed.
What this practically means
#Executive summary
#Key legal issues
#Competence of a rule 5(2)(b) application
The application was competent because the applicant demonstrated that she filed a notice of appeal dated 1st August 2024.
Jurisdiction under rule 5(2)(b) depends on a notice of appeal having been filed against the decision sought to be stayed, as confirmed in Halai & Another v Thornton & Turpin (1963) Ltd. The applicant satisfied this threshold requirement.
Executability of the order sought to be stayed
The ruling of Nzili, J. merely declined to exercise discretion and was a negative order incapable of execution, so there was nothing to stay.
The ELC ruling dismissed the applicant's stay application without ordering any party to do or refrain from doing anything. Relying on Kanwal Sarjit Dhiman v Keshavji Jivraj Shah and Co-operative Bank of Kenya Ltd v BIFU, the Court held such negative orders cannot be stayed, save as to costs.
Arguability and nugatory-ness
The Court was not satisfied the appeal was arguable and held that it would not be rendered nugatory if the orders were declined.
Applying the twin principles, the Court found the appeal unlikely to succeed and further held that any loss the applicant might suffer in her hotel business could be compensated by damages, so the nugatory limb failed independently.
Legal principles established
#- Jurisdiction under rule 5(2)(b) to stay a judgment or decree is contingent on a notice of appeal having been filed against the ruling in question.
- A negative order — one that neither orders performance by nor restrains any party — is incapable of execution and cannot be stayed.
- The twin principles for a stay under rule 5(2)(b) are that the appeal is arguable and that it would be rendered nugatory if the order is not granted.
- Where any prejudice suffered by an applicant is compensable by an award of damages, the nugatory-principle limb is not satisfied.
Court orders
#- 1.Dismissal of the Notice of Motion dated 6th August 2024 with costs to the respondent
- On appeal from
- Environment and Land Court
- ELC No. 19 of 2019 (Formerly Meru HC ELC No. 37 of 2013)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Wakarima v Rael Gatabira Mutea", Case Analysis (2025). Notice of Motion dated 6th August 2024 (Civil Appeal from ELC No. 19 of 2019, formerly Meru HC ELC No. 37 of 2013). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/399/eng@2025-02-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.