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Court of AppealDismissedCivil Application No. Nyeri (ELC Appeal No. E008 of 2023 pending appeal)· [2025] KECA 554 (KLR)

Abdalla Mutembei Gisaga v Patricia Kathure Kiruja

Court of Appeal of Kenya
14 March 2025
SKS. ole KantaiJLJ. LesiitALAli-Aroni
953 words in judgment
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The bottom line

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Kenya's Court of Appeal refused to pause a Kshs.1.9 million rent dispute award, ruling a dismissal judgment cannot be stayed.

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 by Abdalla Mutembei Gisaga seeking stay of execution of the judgment of the Environment and Land Court at Chuka (Yano, J.) delivered on 25th September 2024 in ELC Appeal No. E008 of 2023. The ELC judge had dismissed the applicant's appeal against a Business Premises Rent Tribunal ruling which awarded the respondent, a tenant, Kshs.1,650,000 as refund of renovation costs, Kshs.112,000 as unutilized rent, and costs assessed at Kshs.175,000. The applicant argued before the Court of Appeal that he had an arguable appeal faulting the first appellate court's failure to re-evaluate evidence, and that the respondent was about to execute the judgment. The respondent opposed, contending the twin rule 5(2)(b) conditions were unmet and, in the alternative, sought conditional stay upon deposit of the decretal sum. The applicant, though in person and served, did not attend the hearing but filed written submissions. The court (ole Kantai, Lesiit and Ali-Aroni JJA) first noted that the impugned judgment merely dismissed the applicant's appeal, making it a negative order incapable of execution, following Kanwal Sarjit Singh Dhiman v Keshavji Shah and Kaushik Panchamatia v Prime Bank. On the merits, the court found the intended appeal - being a second appeal confined to points of law - not arguable, and that the applicant had not shown the respondent would be unable to pay damages if the appeal ultimately succeeded. The application was dismissed with costs on 14th March 2025. This decision binds subordinate courts and the ELC on the principles governing stay under rule 5(2)(b) and the non-stayability of negative orders.

Key legal issues

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01

Jurisdiction to grant stay under rule 5(2)(b)

Holding

The twin conditions for stay under rule 5(2)(b) are an arguable appeal and nugatory-ness; neither was met

Reasoning

The court restated the established rule 5(2)(b) principles, citing Stanley Kangethe Kinyanjui v Tony Ketter, and applied them to the draft memorandum of appeal. Because the intended appeal was a second appeal lying only on points of law, the court found no arguable point of law and no demonstration that the respondent could not pay damages if the appeal succeeded.

p. 2
02

Stay of a negative order

Holding

A judgment that merely dismisses an appeal is a negative order incapable of execution and cannot be stayed

Reasoning

The court observed that the impugned ELC judgment merely dismissed the applicant's first appeal, making it a negative order incapable of execution. It relied on its own prior decisions, Kanwal Sarjit Singh Dhiman v Keshavji Shah and Kaushik Panchamatia & 3 Others v Prime Bank Limited, holding that there is nothing to stay in such an order save possibly costs.

p. 2

Legal principles established

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  • To obtain stay under rule 5(2)(b), an applicant must demonstrate an arguable appeal and that the appeal will be rendered nugatory if stay is not granted
  • A judgment that merely dismisses an appeal is a negative order incapable of execution and therefore incapable of being stayed

Court orders

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  1. 1.Dismissal of the application dated 11th October 2024
  2. 2.Costs of the application to the respondent
On appeal from
Environment and Land Court at Chuka
ELC Appeal No. E008 of 2023
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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, "Abdalla Mutembei Gisaga v Patricia Kathure Kiruja", Case Analysis (2025). Civil Application No. Nyeri (ELC Appeal No. E008 of 2023 pending appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/554/eng@2025-03-14

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