Anthony Muiru Maina v Peter Kamau Kimani
The bottom line
#Kenya's Court of Appeal confirmed you cannot get a stay of execution against a dismissal ruling, because a dismissal orders nobody to do anything.
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 intended appeal is arguable and not frivolous
- 2.Whether the success of the intended appeal would be rendered nugatory if stay is denied
- 3.Whether a stay of execution can issue against a negative order (dismissal of the summons for revocation of grant)
Key legal issues
#Whether a stay of execution lies against a negative order
No. A dismissal is a negative order that leaves the parties as they were and cannot be stayed, except as to costs.
The High Court had set aside the revocation of the grant and dismissed the summons for revocation. That order commanded no party to do or refrain from doing anything, so there is no positive obligation in a decree capable of being delayed. None of the orders below included an eviction order against the applicant that could be stayed.
Whether the applicant's prayers for injunction could save the application
No. Regardless of framing, the applicant was seeking a stay of negative orders; injunctions cannot lie at this stage.
The court acknowledged the application was inelegantly drawn and that injunction prayers were included, but held that granting them would amount to issuing first-instance injunctions in a second appeal, which the Court has no jurisdiction to do. Substantive issues on subdivision and title are for the intended appeal.
Whether the twin Rule 5(2)(b) threshold was met
The application failed to meet the threshold and was dismissed.
Having found the orders sought were against negative orders and that injunction relief was unavailable, the court concluded the application could not satisfy the twin requirements of arguability and nugatory-ness as framed, without making detailed findings on each limb.
Legal principles established
#- A stay of execution cannot be issued against a negative order, save for the aspect of costs, because a negative order is incapable of execution
- An applicant under Rule 5(2)(b) must satisfy the twin conditions of an arguable appeal and nugatory-ness
- The Court of Appeal on a Rule 5(2)(b) application cannot issue injunction orders in the first instance in a second appeal
Court orders
#- 1.The Notice of Motion dated 30th April 2025 is dismissed
- 2.Each party shall bear its own costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Murang'a HCCA No. E014 of 2023 (Probate & Administration Appeal E014 of 2023)
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022 (original jurisdiction of the Court of Appeal to grant stay pending appeal)
Relief refused
#Stay of execution of the High Court judgment and decree of 26th March 2025, including orders barring eviction of the applicant and dealings in LR No. LOC 18/Kirere/995
The High Court order was a negative order incapable of execution; injunction-type orders would amount to granting first-instance relief in a second appeal, beyond the Court's jurisdiction
Costs
Application dismissed with an order that each party shall bear its own costs
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.
A stay of execution cannot be issued against a negative order, save for the aspect of costs. This is because a negative order is fundamentally incapable of execution.
a negative order is one that does not command any party to do or refrain from doing anything; it leaves the parties in the exact same position they were in before moving the court
Accordingly, the application dated 30th April 2025 is without merit and is hereby dismissed, with an order that each party shall bear its own costs.
Issues in the judgment
#Judgment delivery date (25 September 2026) post-dates the application and proceedings (2025) by a year
Applicant's prayer misstates the judgment year as 2005
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Anthony Muiru Maina v Peter Kamau Kimani", Case Analysis (2026). Civil Application No. E068 of 2025. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1698/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.