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Court of AppealDismissed· [2025] KECA 2138 (KLR)

M’Mutea & 5 others v Waruiru & 2 others (Civil Appeal (Application) E108 of 2024) [2025] KECA 2138 (KLR)

Court of Appeal
28 November 2025
1,481 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 refused to pause a land dispute ruling, confirming that a judgment that simply dismisses a case cannot be stayed because there is nothing to enforce.

What this practically means

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Executive summary

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The Court of Appeal at Nyeri, comprising Ole Kantai, Lesiit and Ali-Aroni, JJ.A, dismissed a notice of motion dated 20th November 2024 brought under Rule 5(2)(b) of the Court of Appeal Rules, 2022, seeking a stay of execution of a judgment of the Environment and Land Court at Meru (Meru ELC Case No. E024 of 2021, delivered 1st February 2024) and an injunction restraining the respondents from dealing with or alienating parcel KIAMURI "A"/611 pending appeal. The applicants had failed at trial to prove claims of fraud in the acquisition of the land, rectification of the register and transfer. The Court restated the twin principles governing Rule 5(2)(b) applications: the applicant must show an arguable appeal and that the appeal would be rendered nugatory absent a stay. The applicants did not annex a draft memorandum of appeal or identify their intended grounds, leaving the Court unable to find arguability. On the nugatory limb, the Court held that the trial court had issued a negative order - a bare dismissal with costs - incapable of execution, and that payment of costs, being recoverable, cannot render an appeal nugatory. The Court applied its prior decisions on the stay of negative orders and dismissed the application with costs to the respondents. The respondents' claim that paid costs are refundable was accepted. The judgment reaffirms binding propositions that one arguable point suffices, that success need not be shown, that negative orders are incapable of stay, and that costs do not render appeals nugatory.

Key legal issues

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01

Twin principles for stay under Rule 5(2)(b)

Holding

An applicant must demonstrate an arguable appeal and that the appeal will be rendered nugatory absent stay; the applicants failed on both limbs

Reasoning

The applicants filed no draft memorandum of appeal and did not articulate intended grounds, so the Court could not assess arguability. On the nugatory limb, the only threatened action was the pursuit of costs, which are refundable and therefore incapable of rendering an appeal nugatory.

p. 3
02

Stay of negative orders

Holding

Where the trial court dismissed the suit and ordered nothing to be done, the judgment is a negative order incapable of execution and there is nothing to stay

Reasoning

The Court adopted its earlier pronouncements in Nthiga v Keeru and the authorities there cited, noting the trial court had merely dismissed the suit with costs, so any execution could only relate to costs, which are not the subject of a stay of execution under Rule 5(2)(b).

p. 3

Legal principles established

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  • An applicant under Rule 5(2)(b) must satisfy the twin principles of an arguable appeal and the appeal being rendered nugatory without stay
  • A single arguable point suffices and the applicant need not show it would succeed
  • A judgment dismissing a suit without ordering the parties to do or refrain from doing anything is a negative order incapable of execution and incapable of stay
  • Payment of costs cannot render an intended appeal nugatory because costs paid are recoverable

Court orders

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  1. 1.The application dated 20th November 2024 is dismissed
  2. 2.Costs of the application awarded to the respondents

Authorities

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Legislation

  • Court of Appeal Rules, 2022Rule 5(2)(b)
  • Court of Appeal Rules, 2022Rule 77

Cases cited (8)

  • Cabinet Secretary Ministry of Health vs. Aura & 13 Others
    Civil Application E583 of 2023 (2024) KECA 2 (KLR)
  • David Morton Silverstein vs. Atsango Chesoni
    [2002] eKLR
  • Yellow Horse Inns Ltd vs. A. A Kawir Transporters & 4 Others
    [2014] eKLR
  • Kenya Commercial Bank Limited v. Nicholas Ombija
    [2009] eKLR
  • Nthiga vs. Keeru & 2 Others
    (Civil Application 19 of 2020) [2024] KECA 320 (KLR)
  • Western College of Arts and Applied Sciences v EP Oranga & 3 others
    [1976] eKLR
  • Wilson v Church
  • Raymond M. Omboga vs. Austine Pyan Maranga
    Kisii HCCA No 15 of 2010
On appeal from
Environment and Land Court
Meru ELC Case No. E024 of 2021
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, 2022

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, "M’Mutea & 5 others v Waruiru & 2 others (Civil Appeal (Application) E108 of 2024) [2025] KECA 2138 (KLR)", Case Analysis (2025). . Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2138/eng@2025-11-28

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