Kihoi v Faulu Microfinance Bank Limited (Civil Application E269 of 2025) [2025] KECA 1581 (KLR)
The bottom line
#The Court of Appeal refused to halt a High Court ruling because a judgment that simply dismisses a case cannot 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 there exists a positive order capable of being stayed
- 2.Whether the intended appeal is arguable
- 3.Whether the intended appeal would be rendered nugatory if stay is not granted
Key legal issues
#Whether a court can grant stay of execution of a negative order
No. Before engaging the rule 5(2)(b) twin limbs, the court must first be satisfied that there exists a positive order capable of being stayed. A judgment that merely dismisses a suit or appeal, without directing any party to do, refrain from doing, or pay anything, is a negative order that cannot be stayed.
The Court reaffirmed the principle in Western College of Arts and Applied Sciences v EP Oranga, adopted by its predecessor and affirmed in numerous subsequent decisions. The High Court judgment under challenge did no more than dismiss the applicant's appeal; execution could only lie in respect of costs. The motion was worded as an injunction application but the main orders sought were for stay of a negative order, so the relief did not lie in law.
Whether the applicant satisfied the rule 5(2)(b) twin threshold of an arguable appeal and nugatory aspect
The Court did not reach the merits of the twin limbs because the threshold condition of a positive order capable of being stayed was not met; the application was therefore found to be without merit.
Although the applicant argued that the intended appeal raised the question whether a statutory power of sale can be exercised without a validly registered charge, and that the family land was unique and irreplaceable, the Court held that the relief sought under rule 5(2)(b) does not lie in law because the order under challenge was negative.
Legal principles established
#- An applicant under rule 5(2)(b) must demonstrate, first, that the intended appeal is arguable, and secondly, that unless the orders sought are granted the appeal will be rendered nugatory
- Negative orders cannot be stayed; a stay of execution lies only in respect of a positive order capable of being executed
Court orders
#- 1.The Notice of Motion dated 28th April 2025 is dismissed with costs to the respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Thika
- HCCA No. 9 of 2024 (Civil Appeal No. 9 of 2024)
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the judgment and decree of Muchemi, J delivered on 3rd April 2025 in HCCA No. 9 of 2024 pending the intended appeal
The judgment under challenge was a negative order that cannot be stayed; it merely dismissed the appeal without directing the applicant to do, refrain from doing, or pay anything, save costs
Costs
The Notice of Motion dated 28th April 2025 is 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.
Negative orders cannot be stayed.
It is trite law that in an application of this nature the applicant must demonstrate, first, that the intended appeal is arguable, and secondly, that unless the orders sought are granted, the appeal will be rendered nugatory.
In those circumstances, the order under challenge is a negative one that cannot be stayed.
For these reasons, the Notice of Motion dated 28th April 2025 is without merit. It is accordingly dismissed with costs to the respondent.
Issues in the judgment
#The judgment does not state the case number, neutral citation or the name of the applicant on the motion; only the underlying appeal (HCCA No. 9 of 2024) and trial case (SPMCC No. E238 of 2021) are identified
The motion is described on its face as an application for injunction, yet the main orders sought are for stay of execution; the Court noted this internal inconsistency itself
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kihoi v Faulu Microfinance Bank Limited (Civil Application E269 of 2025) [2025] KECA 1581 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1581/eng@2025-10-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.