Kivuva t/a M Kivuva & Company Advocates v Shyoni Limited (Civil Appeal (Application) E409 of 2024) [2024] KECA 1958 (KLR) (20 December 2024) (Ruling) Neutral citation: [2024] KECA 1958 (KLR) REPUBLIC OF KENYA IN THE COURT OF APPEAL AT NAIROBI CIVIL APPEAL (APPLICATION) E409 OF 2024 PO KIAGE, WK KORIR & GV ODUNGA, JJA DECEMBER 20, 2024 BETWEEN SARAH MBITHE KIVUVA T/A M KIVUVA & COMPANY ADVOCATES ............................................................................................ APPELLANT AND SHYONI LIMITED .............................................................................. RESPONDENT (An appeal from the ruling of the High Court of Kenya at Nairobi (Nixon Sifuna, J.) dated 15th March, 2024 in HCCC No. 116 of 2010) RULING 1. By an admirably brief ruling dated 15th March 2024, the High Court (Nixon Sifuna, J.) dismissed an application dated 3rd March 2023 by Sarah Mbithe Mutinda Kivuva t/a S.M. Kivuva & Co. Advocates, the applicant before us. The application so dismissed had sought a review of a judgment entered at the High Court (Njagi, J.) thirteen years earlier on 13th March 2010. The learned judge found the said application to have been res judicata and/or an abuse of process not only because it was so late in the day, but also because it sought essentially the same orders as had been prayed for in an earlier application dated 21st February, 2023 for setting aside the same judgment. That application had been dismissed by the learned judge on 21st April 2023. 2. Undeterred by those setbacks, the applicant has now come before this Court moving us through the motion dated 11th June 2024 for an order to stay execution of the ruling made by the High Court pending the hearing and determination of an appeal therefrom. We note that the said motion was brought nearly four months to the day after the order set to be stayed, and notwithstanding that the learned judge had in his ruling given a 90-day moratorium on execution of the initial judgment to enable the applicant to settle the decree therefrom. That moratorium expired on or about 15th June 2024 but it is obvious the decree was not satised by the applicant. https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1958/eng@2024-12-20 1
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3. In the grounds on the face of the motion, the applicant states that she has an arguable appeal and that the same would be rendered nugatory as she will suer irreparable loss and substantial loss in the absence of stay. Her adavit in support sworn on 11th June 2024 repeats the same averments emphasizing, peculiarly in the third person, that “the appellant stands to suer and her remaining assets for her survival would be sold and she would have nothing to depend on whatsoever.” 4. Whereas we did not sight any replying adavit or any other ling for or by the respondent in response to the motion before us, it must nevertheless fail. It seeks to stay the execution of the order made by the learned judge on 15th March 2024. That order, on the face of it, is not capable of being executed. It merely rejected and dismissed the applicant’s application for review. It was a negative order and this Court has said, time without number, that an order of stay of execution cannot issue directed at a negative order incapable of execution. See for instance, Western College of Arts and Applied Sciences Vs. Oranga & Others [1976] KLR 63. Oliver Collins Wanyama Vs. Engineers Board of Kenya [2019] eKLR. 5. Any execution that may be directed against the applicant would be of the age-old judgment. There is no notice of appeal against that judgment placed before us, nor is there an application for stay of its execution. We therefore are bereft of jurisdiction to issue a gratuitous stay of execution against it unmoved, and properly so. 6. In the result, the motion before us fails and is dismissed but with no order as to costs. Order accordingly. DATED AND DELIVERED AT NAIROBI THIS 20TH DAY OF DECEMBER, 2024 P. O. KIAGE ................................... JUDGE OF APPEAL W. KORIR ................................... JUDGE OF APPEAL G. V. ODUNGA ................................... JUDGE OF APPEAL I certify that this is a true copy of the original. Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1958/eng@2024-12-20 2
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