Ngugi & another v Co-operative Bank of Kenya Ltd (Civil Application E732 of 2024) [2025] KECA 584 (KLR)
The bottom line
#Kenya's Court of Appeal ruled you cannot 'stay' a court order that merely dismisses your application — a dismissal creates nothing to stay.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Court of Appeal can, under rule 5(2)(b) of the Court of Appeal Rules, issue an order of stay of execution of a High Court order that merely dismissed an application (for injunction) without any positive order capable of execution.
Key legal issues
#Whether stay of execution can be granted against an order of dismissal under rule 5(2)(b).
No. An order that merely dismisses an application or suit is not capable of execution or enforcement; there is nothing for the Court of Appeal to stay, and the application must be dismissed as incompetent on that ground alone.
The Court reaffirmed the settled principle from Western College of Arts and Applied Sciences v E.P. Oranga (1976) and George ole Sangui v Kedong Ranch Ltd (2015): a dismissal order confers no relief, requires no party to do or refrain from doing anything, and is incapable of execution. The only executable element of the impugned ruling was costs. Competence of the application must be established before the arguability and nugatory-impact tests are even reached.
Whether the Court must first be satisfied that a competent application exists before considering arguability and nugatory-impact.
Yes. Competence is a threshold matter that must be satisfied before the Court considers whether the intended appeal is arguable and whether it would be rendered nugatory.
The Court stated that before undertaking the familiar two-limb test under rule 5(2)(b), it must be satisfied that a competent application is before it on which a stay can validly issue. Since the impugned ruling contained no executable order, the application failed at this threshold stage and the merits of the intended appeal were not considered.
Legal principles established
#- The Court of Appeal has no jurisdiction under rule 5(2)(b) to stay an order that merely dismisses a suit or application, because a bare dismissal is not a positive order capable of execution or enforcement; a stay can only issue in respect of an executable or enforceable order.
Court orders
#- 1.The applicants' motion dated December 2, 2024 is dismissed
- 2.Costs of the application awarded to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Kiambu
- Not stated
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Order of stay of execution of the High Court ruling and order dated 22nd November 2024 pending the hearing and determination of the intended appeal
The High Court merely dismissed the applicants' application for injunction; a dismissal creates no positive order capable of execution or enforcement, so there is nothing to stay.
Costs
The application was dismissed with costs to the respondent.
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.
this Court cannot be moved under rule 5(2) (b) of the Court of Appeal Rules to issue an order of stay of execution of a decision of the High Court, the Environment and Land Court or the Employment and Labour Relations Court, which has merely dismissed an application or a suit.
It was not capable of execution or enforcement. The act of dismissal of the suit could not be stayed.
For that reason, the applicant's motion dated December 2, 2024 has no merit and the same is hereby dismissed with costs to the respondent. It is so ordered.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ngugi & another v Co-operative Bank of Kenya Ltd (Civil Application E732 of 2024) [2025] KECA 584 (KLR)", Case Analysis (2025). Not stated in judgment (Motion dated 2nd December 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/584/eng@2025-03-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.