By Andrew Kariuki
The Court of Appeal has dismissed an application by the Assets Recovery Agency (ARA) seeking to stay a High Court decision that declined to forfeit funds linked to former Nairobi Governor Mike Sonko.
In a ruling delivered on March 25, 2026, a three-judge bench comprising Justices K. Minoti, E.C. Mwita and B. Ongaya held that the application lacked merit, affirming that courts cannot issue stay orders against what is termed a “negative decree.”
The application arose from a High Court judgment delivered on October 1, 2025, which dismissed ARA’s case seeking to have funds in Sonko’s bank accounts declared proceeds of crime and forfeited to the State.
In that decision, the High Court found that the evidence presented was insufficient to establish that the funds were linked to criminal activity, effectively dismissing the forfeiture suit with costs.
Dissatisfied with the outcome, ARA moved to the Court of Appeal seeking a stay of execution pending the hearing and determination of its appeal. The agency argued that provisions under the Proceeds of Crime and Anti-Money Laundering Act (POCAMLA) allowed for preservation orders to remain in force during the appellate process.
However, Sonko’s legal team opposed the application, arguing that the court could not stay a judgment that merely dismissed a suit, as such an order does not require any party to take or refrain from any action.
In its ruling, the Court of Appeal agreed with this position, emphasizing that a dismissal order does not constitute a positive decree capable of execution.
“It is a well-established principle that this Court will not… issue an order of stay of execution… where such court has merely dismissed a suit,” the judges stated.
The bench further noted that there was “nothing to stay” in the High Court’s decision, as it did not direct any party to perform or refrain from performing any act.
The court also questioned the basis of the application, observing that if the law already provided for the continuation of preservation orders as claimed by ARA, then the request for a stay would be unnecessary.
Citing a long line of precedents, the judges reaffirmed that stay orders cannot be granted against decisions that do not impose enforceable obligations.
The application was consequently dismissed with costs awarded to Sonko.
The ruling reinforces a key legal principle in appellate practice while marking another development in the long-running asset recovery case involving the former governor.
