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Court of AppealAllowedNairobi Civil Application No. E- of 2024 (arising from Nairobi High Court Comm. No. 472 of 2012)

Riunge v Insight Communications Limited & 2 others (Civil Appeal (Application) E860 of 2023) [2025] KECA 211 (KLR)

Court of Appeal
7 February 2025
892 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal halted civil jail execution against a judgment debtor, ruling that imprisonment pending an appeal cannot be reversed by money if the appeal succeeds.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal, Nairobi, on a notice of motion dated October 24, 2024 seeking stay of execution of an ex parte judgment of the High Court dated January 24, 2020 in Nairobi High Court Comm. No. 472 of 2012, in which the applicant was condemned to pay Kshs.8,300,000 to the 1st respondent over a failed clinic purchase transaction. The ex parte judgment was entered after a firm of advocates, Messrs. Kimani Kahiro & Associates, filed a notice of change of advocates without instructions and failed to attend the hearing. The applicant's application to set aside the judgment was granted only on condition that he deposit the decretal sum in court as security; being aggrieved, he filed a notice of appeal. Meanwhile, the 1st respondent commenced execution and warrants of arrest were issued against the applicant in October 2024. The Court of Appeal applied the settled twin principles from Chris Munga N. Bichage vs Richard Nyagaka Tong'i: the applicant must show an arguable appeal and that the appeal would be rendered nugatory absent stay. The Court found one ground - that requiring the deposit as a condition for setting aside the judgment infringed the applicant's right to fair hearing under Article 50(1) of the Constitution - to be arguable. On the nugatory limb, the Court held that if the applicant were committed to civil jail and the appeal later succeeded, no monetary compensation could restore his lost freedom. The Court accordingly allowed the application and stayed execution pending appeal, with costs of the application to the applicant.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether, unless stay is granted, the appeal will be rendered nugatory

Key legal issues

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01

Whether the intended appeal is arguable

Holding

The Court found the appeal arguable, including the ground that the trial judge erred by imposing a security condition for setting aside the ex parte judgment despite an alleged violation of the right to fair hearing under Article 50(1).

Reasoning

The Court applied the settled twin principles for stay. It identified among the nine grounds of appeal the contention that the trial judge required the applicant to deposit the decretal sum of Kshs.8,300,000 as a condition for setting aside the ex parte judgment, notwithstanding that the judgment resulted from the advocate's failure to attend court. The Court considered this ground arguable, which satisfies the arguability threshold without needing to determine all nine grounds.

p. 2
02

Whether the appeal would be rendered nugatory absent stay

Holding

Yes. If the applicant were committed to civil jail and the appeal later succeeded, he could not be adequately compensated for the loss of freedom.

Reasoning

Execution had commenced and warrants of arrest had been issued for the applicant's failure to satisfy the decree. The Court reasoned that imprisonment in civil jail is a form of prejudice not compensable in damages; if the applicant were committed and the appeal subsequently succeeded, the loss of liberty could not be undone by any monetary award, rendering the appeal nugatory.

p. 2

Legal principles established

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  • An applicant for stay of execution must demonstrate that the appeal is arguable and that unless stay is granted the appeal, if successful, will be rendered nugatory.
  • An arguable appeal need not be one that will succeed; it suffices that it warrants full consideration, and even one arguable ground suffices.

Court orders

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  1. 1.Stay of execution of the ex parte judgment and orders of the High Court dated 24th January 2020 in Nairobi High Court Comm. No. 472 of 2012, pending hearing and determination of the appeal
  2. 2.The applicant to bear the costs of the application

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court
Nairobi High Court Comm. No. 472 of 2012
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over an intended appeal from the High Court; stay of execution sought under the Court's inherent/appellate powers pending appeal (specific rule not stated in the judgment)

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

An applicant has to demonstrate that the appeal or intended appeal is arguable; and that unless the Court grants the orders sought, the appeal, if successful, shall be rendered nugatory.
p. 2Twin principles for stay of execution pending appeal
An arguable appeal is not one that will necessarily succeed, it is one that warrants full consideration by the Court. Even one ground of appeal is suficient.
p. 2Threshold of arguability
If the applicant is committed to civil jail and eventually his appeal succeeds, the appeal will have been rendered nugatory because the applicant cannot be adequately compensated for the loss of freedom as a result of his imprisonment.
p. 2Nugatory value - loss of liberty not compensable
In view of the foregoing, we are inclined to exercise our discretion in favour of the applicant. We hereby grant the orders sought. The applicant shall bear the costs of the application.
p. 3Final orders and disposition

Issues in the judgment

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minor

The judgment does not state the application number of the notice of motion or the specific rule under which stay was sought; the case number is inferred from references to the High Court commercial suit and the notice of appeal.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Riunge v Insight Communications Limited & 2 others (Civil Appeal (Application) E860 of 2023) [2025] KECA 211 (KLR)", Case Analysis (2025). Nairobi Civil Application No. E- of 2024 (arising from Nairobi High Court Comm. No. 472 of 2012). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/211/eng@2025-02-07

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.