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Court of AppealDismissedNotice of motion dated 20th November 2024

Kewal Contractors Limited v Hatfield (Civil Application E649 of 2024) [2025] KECA 1167 (KLR)

Court of Appeal
20 June 2025
DMD. K. MusingaMNMumbi NgugiFTF. Tuiyott
1,896 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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The Court of Appeal dismissed Kewal Contractors' attempt to stay a 1999 decree because a negative order cannot be stayed and no appeal targeted that decree.

What this practically means

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Executive summary

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Kewal Contractors Limited moved the Court of Appeal under sections 3A and 3B of the Appellate Jurisdiction Act and rules 5(2)(b), 44 and 49 of the Court of Appeal Rules, seeking stay of execution of a decree dated 26th May 1999 in HCCC No. 2010 of 1996, pending the hearing of its application and of an intended appeal. The intended appeal challenged a High Court ruling of 11th November 2024, by which the trial court had dismissed the applicant's application to declare enforcement of the 1999 decree statute-barred under section 4(4) of the Limitation of Actions Act, holding that the word 'may' conferred discretion to extend time where sufficient cause was shown. The respondent, the decree-holder, maintained that his enforcement efforts over two decades had been frustrated by the loss of the court file, intimidation and bankruptcy proceedings instituted by the applicant, and that no credible evidence supported the alleged payment of the decretal sum. The Court found a fundamental mismatch in the application: although the notice of appeal and draft memorandum of appeal impugned only the ruling of 11th November 2024, the motion sought stay of the 1999 decree, against which no notice of appeal had been lodged. The Court characterized this as a disingenuous attempt to obtain a stay of the ruling under the guise of staying the decree. Relying on settled authority, the Court held that a stay of execution cannot issue in respect of a negative or dismissive order, since the trial court had merely declined to grant relief without directing any party to act or abstain. Finding nothing to stay, the Court dismissed the application 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 intended appeal is arguable
  2. 2.Whether the appeal, if successful, would be rendered nugatory absent a stay of execution
  3. 3.Whether a stay of execution can issue in respect of the decree of 26th May 1999 given that the notice of appeal challenges only the ruling of 11th November 2024
  4. 4.Whether a stay of execution may issue in respect of a negative or dismissive order

Key legal issues

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01

Whether stay of execution may be sought of a decree not challenged by any notice of appeal

Holding

The Court found the application disingenuous: the notice of appeal and draft memorandum impugned only the ruling of 11th November 2024, yet the motion sought stay of the 1999 decree, concealing a stay of the ruling itself.

Reasoning

The Court noted the mismatch between the relief sought and the intended appeal. The notice of appeal dated 13th November 2024 was expressly directed at the ruling of 11th November 2024, and the sixteen grounds in the draft memorandum exclusively impugned that ruling. No notice of appeal existed against the 1999 judgment or decree, so stay of that decree could not be entertained as ancillary to an intended appeal.

p. 3
02

Whether a negative or dismissive order is capable of being stayed

Holding

A negative order is incapable of being stayed because there is nothing to stay; the trial court's dismissal of the applicant's application directed no party to do or refrain from doing anything.

Reasoning

Relying on Western College v Oranga, Co-operative Bank v BIFU and Kaushik Panchamatia, the Court held that stay of execution presupposes a positive obligation in a decree. The trial court had merely declined to grant the orders sought; it did not direct either party to take or refrain from any action. There was therefore nothing arising from the ruling capable of being stayed, and the Court had no mandate to grant the stay prayed for.

p. 4

Legal principles established

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  • A stay of execution cannot issue in respect of a negative or dismissive order, as there is nothing to stay.
  • An applicant for stay under rule 5(2)(b) must satisfy the Court that the intended appeal is arguable and that, unless stay is granted, the appeal will be rendered nugatory; one arguable ground suffices.
  • An order for stay of execution pending appeal is an interim order delaying performance of positive obligations in a decree; it presupposes a positive order to stay.

Court orders

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  1. 1.Dismissal of the notice of motion dated 20th November 2024
  2. 2.Costs of the application to the respondent

The bench

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

DM
majority
MN
majority
FT
majority
On appeal from
High Court
HCCC No. 2010 of 1996
Jurisdiction invoked
Sections 3A and 3B of the Appellate Jurisdiction Act; rules 5(2)(b), 44 and 49(1) and (4) of the Court of Appeal Rules

Relief refused

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Stay of execution of the decree dated 26th May 1999 pending hearing of the application and of the intended appeal

The applicant sought stay of a decree against which no notice of appeal had been lodged, and in any event the order sought to be stayed was a negative order, there being nothing to stay; the trial court had merely declined to grant the orders sought without directing any party to do or refrain from doing anything.

p. 4

Costs

The application was 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.

It is now well settled that a stay of execution cannot issue in respect of a negative or dismissive order, as there is nothing to stay.
p. 3Stay of negative orders
the applicant appears to be disingenuously concealing an application for stay of execution of the ruling of 11th November 2024 under the guise of seeking a stay of execution of the 1999 decree.
p. 3Mismatch between relief sought and intended appeal
An order for stay of execution [pending appeal] is ordinarily an interim order which seeks to delay the performance of positive obligations that are set out in a decree as a result of a judgment.
p. 4Nature of stay of execution
In light of the foregoing, there is nothing to stay in the present matter, and this application is hereby dismissed with costs to the respondent.
p. 4Final orders and disposition

Issues in the judgment

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minor

The High Court case number is inconsistently rendered in the judgment: the motion describes HCCC No. 2010 of 1996, but paragraph 13 refers to HCCC No. 2020 of 1996.

minor

The respondent's name is inconsistently rendered: 'David John Ratfield' in the opening paragraph versus 'David John Hatfield' thereafter.

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, "Kewal Contractors Limited v Hatfield (Civil Application E649 of 2024) [2025] KECA 1167 (KLR)", Case Analysis (2025). Notice of motion dated 20th November 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1167/eng@2025-06-20

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