The Court of Appeal has dismissed an application by the Assets Recovery Agency (ARA) seeking to stay the execution of a High Court judgment that declined to forfeit funds linked to former Nairobi Governor Mike Sonko.
In its ruling delivered on March 25, 2026, in Nairobi, the appellate court found that it could not grant a stay of execution where the lower court had merely dismissed a suit, terming such an order a “negative decree” incapable of enforcement.
ARA had moved the court through a Notice of Motion dated January 22, 2026, seeking orders to stay the execution of a judgment delivered on October 1, 2025, in Anti-Corruption Suit No. 16 of 2020, pending the hearing and determination of its appeal.
The agency argued that under Section 97 of the Proceeds of Crime and Anti-Money Laundering Act (POCAMLA), preservation orders remain in force pending the outcome of an appeal, and therefore the court had jurisdiction to grant the orders sought.
However, the respondent, Mike Sonko Mbuvi Gideon Kioko, opposed the application, arguing that the court could not stay a negative order and that the cited provisions of the law were not applicable to applications under Rule 5(2)(b) of the Court of Appeal Rules.
The appellate court noted that the High Court had dismissed the forfeiture suit after finding that the evidence presented was insufficient to prove that the funds in question were proceeds of crime.
According to the judges, such a dismissal did not impose any obligation on any party, nor did it require any action or restraint, and therefore there was nothing capable of being stayed.
The court further questioned the applicant’s reliance on Section 97 of POCAMLA, observing that if the provision automatically preserved the orders in question, then there would be no need to seek a stay of execution.
Citing established precedent, including the case of Western College of Arts and Applied Sciences v. E.P. Oranga & 3 Others [1976] eKLR, the court reiterated that a dismissal order is not executable and cannot be the subject of a stay.
It emphasized that in such instances, the only executable component would be costs, and not the substantive dismissal itself.
The court concluded that ARA had sought a remedy that could not be granted under the circumstances and dismissed the application with costs awarded to Sonko.
“It is a well-established principle that this Court will not issue an order of stay of execution where the superior court has merely dismissed a suit,” the bench held.
The ruling now paves the way for the substantive appeal filed by ARA to proceed without interim relief.
