Assets Recovery Agency v Kioko (Civil Appeal (Application) E923 of 2025) [2026] KECA 696 (KLR)
The bottom line
#Kenya's Court of Appeal refused to pause a ruling that dismissed the Assets Recovery Agency's forfeiture case against Mike Sonko, because a dismissal order is not something that 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 the Court can grant a stay of execution of a judgment that merely dismissed the applicant's suit
- 2.Whether section 97 of POCAMLA preserves the preservation order pending appeal, rendering a stay unnecessary or available
Key legal issues
#Whether a negative decree (dismissal of a suit) is capable of a stay of execution under rule 5(2)(b) of the Court of Appeal Rules
It is not; where the superior court has merely dismissed a suit, there is nothing to stay because the dismissal does not direct any party to do or refrain from doing anything or to pay any sum.
The Court reiterated the long-standing principle from Western College of Arts and Applied Sciences v EP Oranga, reaffirmed in George ole Sangui v Kedong Ranch Ltd and numerous subsequent decisions, that a dismissal order confers no relief and determines only that the claimant was not entitled to the reliefs sought. Such an order cannot be enforced or executed, and the act of dismissal itself cannot be stayed. The applicant's reliance on section 97 of POCAMLA was inept, since if that provision granted automatic continuation of the preservation order, no stay application would be necessary.
Whether section 97 of POCAMLA aids an application for stay under rule 5(2)(b)
No; the provision was irrelevant to the stay application, and the applicant's reliance on it was internally inconsistent.
Counsel for the applicant invoked section 97 of POCAMLA, contending that a preservation order remains in force pending the outcome of any appeal. The respondent countered that under section 89(1)(b) of POCAMLA a preservation order stands rescinded upon conclusion of proceedings. The Court observed that if section 97 truly granted automatic continuation of the preservation order, the applicant would have no need to pursue a stay under rule 5(2)(b), exposing an irony in its own submissions.
Legal principles established
#- The Court of Appeal will not, under rule 5(2)(b), grant a stay of execution of a judgment that merely dismissed a suit, because a negative order that does not direct a party to do or refrain from doing anything is not capable of execution.
Court orders
#- 1.The applicant's Notice of Motion dated 22nd January 2026 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, Anti-Corruption and Economic Crimes Division
- Anti-Corruption Suit No. 16 of 2020
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the High Court judgment of 1st October 2025 dismissing Anti-Corruption Suit No. 16 of 2020
A negative order dismissing a suit is not capable of execution or stay; there is nothing to stay
Costs
The applicant's Notice of Motion dated 22nd January 2026 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.
this Court will not, in an application under rule 5(2)(b), issue an order of stay of execution of a decision of a superior court below, where such court has merely dismissed a suit. In that scenario, there is nothing to stay in a negative order which does not direct the applicant to do or refrain from doing something.
The High Court has not ordered any of the parties to do anything, or to refrain from doing anything, or to pay any sum. There is nothing arising out of the High Court judgment for this Court, in an application for a stay, to enforce or refrain by injunction.
The act of dismissal of the suit could not be stayed. It is our finding that to the extent to which the application seeks stay of the order of the dismissal of the suit it cannot be granted.
Accordingly, the applicant's Notice of Motion dated 22nd January 2026 has no merit and is hereby dismissed with costs to the respondent. It is so ordered.
Issues in the judgment
#The name of the High Court judge whose judgment is impugned is truncated in the judgment ("Hon Justice Prof (Dr.)" with no surname).
No neutral citation is stated in the judgment copy provided.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Assets Recovery Agency v Kioko (Civil Appeal (Application) E923 of 2025) [2026] KECA 696 (KLR)", Case Analysis (2026). Civil Appeal Number E923 of 2025 (Motion dated 22nd January 2026). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/696/eng@2026-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.