The Court of Appeal has dismissed an application by the Assets Recovery Agency (ARA) seeking to suspend a High Court decision that threw out its case against former Nairobi Governor Mike Sonko, holding that there was nothing capable of being stayed after the suit had already been dismissed.
In a ruling delivered virtually on Wednesday, a three-judge bench comprising Justices Kathurima M’inoti, Chacha Mwita, and Byram Ongaya found that the agency’s request for a stay of execution was legally untenable because the High Court had issued what the judges described as a negative decree.
“Be that as it may, it is a well established principle that 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,” ruled the court.
The ruling stems from a decision delivered on October 1, 2025, by Justice Prof. Nixon Sifuna at the High Court’s Anti-Corruption and Economic Crimes Division, where the court dismissed a suit filed by the ARA seeking the forfeiture of money held in several bank accounts linked to Sonko.
The agency had argued that the funds were proceeds of crime and should therefore be forfeited to the State.
However, the High Court found that the evidence placed before it was insufficient to sustain the claim and dismissed the matter.
Unhappy with that outcome, the ARA lodged a notice of appeal and moved to the Court of Appeal, seeking orders to stay the execution of the High Court judgment pending the hearing and determination of its appeal.
But when the matter came up for hearing on March 4, the appellate court raised a central legal issue , whether it could stay a judgment that had merely dismissed a case without directing any party to do or refrain from doing anything.
Appearing for the agency, lawyer Ms. Muchiri argued that the court had the authority to issue the orders sought, relying on Section 97 of the Proceeds of Crime and Anti-Money Laundering Act (POCAMLA).
She submitted that preservation orders issued under the law could remain in force pending the conclusion of an appeal.
Sonko’s legal team, led by Kinyanjui, opposed the application, arguing that a stay of execution cannot issue against a negative order.
He maintained that once proceedings against a party are concluded, any preservation orders lapse by operation of law under Section 89(1)(b) of POCAMLA.
In dismissing the application, the appellate judges agreed with Sonko’s legal team and reaffirmed that a court cannot stay an order dismissing a suit because such an order is not executable.
“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 capable of execution,” the judges held.
The bench further noted that the ARA’s own arguments appeared inconsistent.
It observed that if the agency was correct in its interpretation of Section 97 of POCAMLA, then the preservation orders would have continued automatically pending appeal, making the stay application unnecessary in the first place.
The court found that the agency’s motion lacked merit and dismissed it.
“To the extent that the applicant seeks an order of stay of execution against a judgment dismissing its suit, the Court cannot issue such an order. Accordingly, the applicant’s notice of motion has no merit and is hereby dismissed with costs to the respondent,” the ruling stated.
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