Samsung Eletronics Limited v Paragon Eletronics Limited (Civil Appeal (Application) E110 of 2025) [2025] KECA 1938 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed you cannot get a stay of execution against a ruling that merely dismissed your application, because only positive orders 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 there exists a positive order capable of being stayed
- 2.Whether the intended appeal is arguable
- 3.Whether the appeal would be rendered nugatory if stay is not granted
Key legal issues
#Whether a negative order (dismissal of an application without positive directions) is capable of stay under rule 5(2)(b)
A negative order cannot be stayed; where the High Court merely dismissed an application without directing any party to do or refrain from doing anything, there is nothing to execute and the rule 5(2)(b) relief does not lie.
The Court reaffirmed the long-standing principle in Western College of Arts and Applied Sciences v E.P. Oranga, later affirmed in Kanwal Sarjit Singh Dhiman, Co-operative Bank of Kenya and Kenya Commercial Bank v Tamarind Meadows. The ruling of 16th December 2024 merely dismissed the applicant's application for enlargement of time and stay; no positive orders issued. None of the prayers sought an injunction. Consequently the threshold requirement of an order capable of being stayed was not met, and the twin limbs of arguability and nugatory-need need not be reached.
The twin test for stay under rule 5(2)(b)
An applicant must demonstrate that the intended appeal is arguable and that, unless stay is granted, the appeal will be rendered nugatory.
The Court restated the settled test, citing Stanley Kang'ethe Kinyanjui v Tony Ketter & 5 others, but held that the threshold question of whether a positive order exists precedes engagement with those two limbs. Having found no positive order, the application failed without determination of arguability or nugatory effect.
Legal principles established
#- Negative orders, being orders that do not direct any party to do or refrain from doing anything, cannot be stayed
- An applicant under rule 5(2)(b) must first satisfy the court that there exists a positive order capable of being stayed before the arguability and nugatory-variation limbs are considered
Court orders
#- 1.The Notice of Motion dated 17th February 2025 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
- HCCC No 171 of 2009
- Jurisdiction invoked
- Sections 3, 3A and 3B of the Appellate Jurisdiction Act and rules 1(2), 5(2)(b), 43, 44 and 49(1) of the Court of Appeal Rules
Relief refused
#Stay of execution of the High Court ruling of 16th December 2024 pending the intended appeal
The ruling challenged was a negative order dismissing the applicant's application; it did not direct any party to do or refrain from doing anything, so there is nothing capable of being stayed under rule 5(2)(b)
Costs
The Notice of Motion dated 17th February 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.
The position taken by this Court in respect of applications for stay of execution in respect of negative orders is clear. Negative orders cannot be stayed.
However, before engaging with those two limbs, we must first be satisfied that there exists a positive order capable of being stayed.
In those circumstances, the order under challenge is a negative one that cannot be stayed. While the applicant may very well pursue its intended appeal, the relief it seeks under rule 5(2)(b) does not lie.
For these reasons, the Notice of Motion dated 17th February 2025 is without merit. It is accordingly dismissed with costs to the respondent.
Issues in the judgment
#The case number of the application before the Court of Appeal is not stated in the judgment; it is identified only by the Notice of Motion dated 17th February 2025 and the underlying High Court matter (HCCC No 171 of 2009).
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Samsung Eletronics Limited v Paragon Eletronics Limited (Civil Appeal (Application) E110 of 2025) [2025] KECA 1938 (KLR)", Case Analysis (2025). Not stated in judgment (arises from HCCC No 171 of 2009). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1938/eng@2025-11-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.