Mary Muthoni Kihoi v Faulu Microfinance Bank Limited
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
#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
- 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
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Mary Muthoni Kihoi v Faulu Microfinance Bank Limited", 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.