Ndirangu & 7 others v County Government of Nyeri (Civil Application E093 of 2025) [2025] KECA 2145 (KLR)
The bottom line
#Nyeri matatu saccos must relocate to the new terminus after the Court of Appeal refused to halt the county's order pending their appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether conservatory orders are available under rule 5(2)(b) of the Court of Appeal Rules, 2022
- 2.Whether an order of stay of execution can issue against a negative order
- 3.Whether the applicants have met the threshold for the grant of the orders sought (arguable appeal and nugatory appeal)
Key legal issues
#Availability of stay where the judgment is said to be a negative order
Stay of execution was available because the High Court judgment, though dismissing the petition, contained positive directions on relocation requiring action by the respondent.
The respondent objected that a negative order cannot be stayed. The Court, without resolving whether conservatory orders lie under rule 5(2)(b), examined the High Court judgment and noted that the Judge had issued directions on how relocation would take place. That gave the respondent actions to take in compliance with the judgment, so the result was not negative, and the Court proceeded to consider whether stay was available.
Arguability of the intended appeal
The intended appeal was arguable, as it raised questions on the interpretation and enforcement of constitutional rights.
The Court examined the draft memorandum of appeal annexed to the motion. The grounds centred on the interpretation and enforcement of constitutional rights allegedly violated by the relocation directive. Applying the low threshold for arguability, under which a single point worthy of consideration suffices, the Court found the intended appeal arguable. This satisfied the first limb of the rule 5(2)(b) test.
Whether the appeal would be rendered nugatory
The appeal would not be rendered nugatory if the orders were declined, as relocation is reversible and losses are compensable in damages.
Applying the nugatory principles in Stanley Kangethe Kinyanjui vs. Tony Ketter, the Court weighed reversibility and compensability. Relocation to the new terminus is reversible; the applicants would still have access to the old station should the appeal succeed, and any loss would be quantifiable and assessable for compensation by damages. The Court also considered context: the majority of transporters had not challenged the judgment, and allowing the applicants alone to remain would result in disarray.
Legal principles established
#- A judgment that dismisses a petition but issues positive directions on compliance is not a negative order, and stay of execution may issue against it.
- The threshold for an arguable appeal is low; a single point worthy of the Court's consideration suffices.
Court orders
#- 1.Notice of motion dated 1st July 2025 dismissed
- 2.Each party to meet their own costs in respect of the motion
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nyeri
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022 (application for stay of execution, injunction or stay of proceedings pending intended appeal)
Relief refused
#Stay of execution of the High Court judgment and conservatory orders restraining the respondent from implementing the Executive Order of 12th November 2024
The intended appeal is arguable, but it would not be rendered nugatory because relocation is reversible and any loss is compensable by damages; the judgment was not a negative order.
Costs
The respondent having been gracious on the issue of costs, we direct the parties to meet their own costs in respect to the motion.
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.
we do not think that relocation of the applicants will render the appeal nugatory. The applicants, even if relocated, will still have access to the old station should the appeal succeed. Any loss suffered by the applicants during the relocation process can always be mitigated by an award of damages.
despite dismissing the petition, the learned Judge went ahead to issue directions on how the relocation would take place. The respondent, therefore, had actions to take in compliance with the judgment and it cannot therefore be said that the result of the judgment was negative in nature.
Accordingly, we do not find merit in the application, and we hereby dismiss it. The respondent having been gracious on the issue of costs, we direct the parties to meet their own costs in respect to the motion.
Issues in the judgment
#The judgment appears to be an application ruling (notice of motion) but is styled as a judgment; the applicant parties are not individually named in the coram and no appeal number is given.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ndirangu & 7 others v County Government of Nyeri (Civil Application E093 of 2025) [2025] KECA 2145 (KLR)", Case Analysis (2025). Notice of motion dated 1st July 2025 (Civil Appeal - Nyeri). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2145/eng@2025-11-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.