Mwinyikai v Elephant Oils Limited & 5 others (Civil Application E028 of 2024) [2025] KECA 1301 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you cannot 'stay' a ruling that merely dismissed your case—only orders requiring someone to act can be stayed.
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 has discretion to grant a stay of execution of the ruling of 11th March 2024 dismissing the applicant's applications
- 2.Whether the twin principles under rule 5(2)(b) - arguability of the intended appeal and nugatory-ness - were demonstrated
Key legal issues
#Whether the wrong invocation of Order 42 rule 6 instead of rule 5(2)(b) of the Court of Appeal Rules was fatal to the application
No - the Court considered the substance under rule 5(2)(b) notwithstanding the incorrect provisions, since the applicant had attempted to demonstrate the twin principles.
The Court observed that the rules governing stay in the High Court differ from the twin principles applicable under rule 5(2)(b) of the Court of Appeal Rules. Rather than striking out the application on a technicality, the Court proceeded to assess whether the intended appeal was arguable and whether it would be rendered nugatory absent stay, treating the misjoinder of provisions as non-determinative.
Whether a stay can be granted of a ruling that dismissed the applicant's applications
No. The order resulting from dismissal of both applications is a negative order, incapable of being stayed; the Court is bereft of discretionary power to grant the orders sought.
Following Western College of Arts and Applied Sciences v EP Oranga and Republic v Kenya Wildlife Service, the Court reasoned that upon dismissal of the applications dated 4th October 2023 and 24th November 2023, there was no requirement on any person to do or refrain from doing anything. Execution can only lie against a positive and enforceable order, and none existed here, rendering the stay application extraneous to the orders actually made by the trial court.
Legal principles established
#- Order 42 rule 6 of the Civil Procedure Rules, 2010 does not apply to the Court of Appeal; a party seeking stay before the Court must invoke rule 5(2)(b) of the Court's Rules, whose twin principles are arguability and nugatory-ness.
- No stay of execution can issue in respect of a negative order - an order that merely dismisses an application without requiring any party to do or refrain from doing anything - because there is nothing to execute or stay.
Court orders
#- 1.The Notice of Motion dated 20th March 2024 is dismissed
- 2.Costs of the application awarded to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Environment and Land Court, Mombasa
- Mombasa ELC Case No 101 of 2021
- Jurisdiction invoked
- Order 42 rule 6 of the Civil Procedure Rules, 2010; sections 1A and 1B of the Civil Procedure Act; Articles 48 and 50(2) of the Constitution - though the Court held the correct provision for stay before it is rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the judgment and/or orders of 11th March 2024 in Mombasa ELC Case No 101 of 2021 pending the intended appeal
The impugned ruling was a negative order dismissing the applicant's applications; there is nothing arising from it that the Court can stay, so the Court lacks the discretionary power to grant the orders sought
Costs
The Notice of Motion dated 20th March 2024 is dismissed with costs to the 1st 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.
Rule 5(2) (b) mandates us to consider what is now commonly referred to as the twin principles, namely whether the intended appeal is arguable, and whether the appeal is likely to be rendered nugatory absent stay.
In essence, the resultant order of the trial court was a negative order.
In the result, the Notice of Motion dated 20th March 2024 is devoid of merit and is hereby dismissed with costs to the 1st respondent.
Issues in the judgment
#The judgment states the application (dated 20th March 2024) was heard on 18th February 2024, a date preceding the application's own date and inconsistent with the delivery date of 18th July 2025; the hearing date appears to be an error.
The case number of the application before the Court of Appeal is not stated anywhere in the judgment.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mwinyikai v Elephant Oils Limited & 5 others (Civil Application E028 of 2024) [2025] KECA 1301 (KLR)", Case Analysis (2025). Civil Application No E011 of 2024 (as inferred from the Notice of Motion dated 20th March 2024; number not stated in the judgment). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1301/eng@2025-07-18
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.