Ochieng v Awanad Enterprises Ltd & 2 others (Civil Application E105 of 2025) [2026] KECA 1376 (KLR)
The bottom line
#Kenya's Court of Appeal dismissed a stay application, confirming that a dismissal ruling creating no fresh obligation is a negative order that cannot 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 leave of the trial court was required under Rule 11(3) of the Advocates Remuneration Order before lodging the intended appeal, and hence whether the Court has jurisdiction over the application
- 2.Whether the intended appeal is arguable
- 3.Whether the intended appeal, if successful, would be rendered nugatory absent a stay of execution
Key legal issues
#Whether the Court lacked jurisdiction because leave was not obtained under Rule 11(3) of the Advocates Remuneration Order
The objection fails; the leave requirement under Paragraph 11(3) applies only to appeals from the determination of a reference, not to an appeal challenging a judge's ruling declining to enlarge time and setting aside taxation
The Court examined Paragraph 11 of the Advocates Remuneration Order and held that it governs objections to a taxing officer's decision by way of reference and appeals from the judge's determination of such a reference. The applicant's Notice of Appeal instead challenges the exercise of the learned Judge's discretion in declining to enlarge time and the legal conclusions reached in that ruling, which falls outside Paragraph 11(3). The Court therefore retained jurisdiction to entertain the Rule 5(2)(b) application.
Whether the intended appeal is arguable
Yes - the jurisdictional question whether a court that has declared a suit a nullity can lawfully tax costs from such a proceeding is arguable
The Court found the applicant had raised a jurisdictional question - whether a court that has declared a suit a nullity can nonetheless tax costs emanating from that proceeding, and in which forum costs should be taxed. It considered this an arguable issue worthy of ventilation, satisfying the first limb of the Rule 5(2)(b) test.
Whether the intended appeal would be rendered nugatory absent a stay
No - the impugned ruling of 27th November 2025 was a negative order incapable of being stayed, so the applicant failed the second limb
The Court noted the ruling merely dismissed the applicant's application for enlargement of time, nullification of taxation and setting aside of the taxing master's decision; it created no fresh executable obligation. What the applicant sought in substance was to suspend the consequences of an earlier costs decree. Following the settled jurisprudence on negative orders, the Court held there was nothing to stay and the second criterion was not satisfied.
Legal principles established
#- Both limbs of the Rule 5(2)(b) test - arguability and nugatory effect - must be satisfied before a stay of execution pending appeal can issue
- A negative order - one that does not order any party to do any positive act or refrain from acting - is incapable of execution and incapable of being stayed
- The leave requirement in Paragraph 11(3) of the Advocates Remuneration Order applies only to appeals from a judge's determination of a reference under Paragraph 11(2); an appeal challenging the exercise of a judge's discretion in declining to enlarge time is not such an appeal
Court orders
#- 1.The Notice of Motion dated 18th December 2025 is dismissed
- 2.Costs in the appeal are awarded (to the Respondents)
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Employment and Labour Relations Court at Mombasa
- ELRC Cause No. 22 of 2019
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022; Section 3A of the Appellate Jurisdiction Act; Articles 25(c), 48, 50(1) and 159(2)(d) of the Constitution (invoked by the applicant)
Relief refused
#Stay of execution of the Ruling/Decree of the ELRC delivered 27th November 2025 and restraint of warrants of attachment and consequential execution proceedings pending the intended appeal
The impugned ruling was a negative order incapable of being stayed, and the applicant therefore failed the second limb of the Rule 5(2)(b) test
Costs
Costs in the appeal (awarded against the Applicant)
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.
An applicant must satisfy the Court, first, that the intended appeal is arguable, that is, not frivolous; and second, that unless the orders sought are granted, the intended appeal, if successful, would be rendered nugatory. Both limbs must be satisfied.
The decision was plainly a negative order as it did not order any party to do any positive act nor restrain any party from acting. The law is settled that a negative order is not capable of being stayed.
In the premises, the Respondents' objection founded on Paragraph 11 is without merit and does not deprive this Court of jurisdiction to entertain the present application.
In sum, the Applicant having failed to meet the established threshold for the grant of an order of stay of proceedings under Rule 5 (2) (b) of the Rules, the Notice of motion dated 18th December 2025 lacks merit and is hereby dismissed. Costs in the appeal.
Issues in the judgment
#The judgment's citation treatment is ambiguous as between Kenya Commercial Bank vs Tamarind Meadows and Kanwal Sarjit Singh Dhiman - the text says the Court 'expounded on stay of execution orders' in Tamarind Meadows but then quotes Kanwal Sarjit Singh Dhiman directly, and the quoted passage itself cites Western College; the passage attributed as a quote from Tamarind Meadows appears absent from the text
The Notice of Appeal is inconsistently dated - described in the prayer as filed on 11th December 2025 and in the supporting affidavit as dated 9th December 2025
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Ochieng v Awanad Enterprises Ltd & 2 others (Civil Application E105 of 2025) [2026] KECA 1376 (KLR)", Case Analysis (2026). Civil Application (Motion dated 18th December 2025), Court of Appeal, Mombasa. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1376/eng@2026-07-10
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.