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Court of AppealPartially AllowedCivil Application No. Nai E075 of 2022 (arising from Civil Appeal No. E066 of 2022)

Kidero v Commissioner, Investigations & Enforcement (Civil Application E082 of 2022) [2025] KECA 260 (KLR)

Court of Appeal
21 February 2025
2,188 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~9 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed you can seek a stay of execution there even if the High Court already refused one, and suspended a Kshs 427 million tax decree.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (M'Inoti, Laibuta and Gachoka, JJ.A) on a rule 5(2)(b) application by Evans Odhiambo Kidero for stay of execution of a High Court judgment (Majanja, J., 4th March 2022) which reversed the Income Tax Appeals Tribunal and made him liable for tax assessed at Kshs. 427,269,795. The Court also applied its reasoning to a related application seeking stay of a 7th March 2022 conditional stay order requiring a Kshs. 150,000,000 bank guarantee. The respondent argued the applicant was forum shopping, but the Court held the rule 5(2)(b) jurisdiction is original and discretionary, so an unsuccessful High Court stay application does not bar a fresh application. The Court found the intended appeal arguable, raising issues such as the taxation of political campaign donations, and held the appeal would be rendered nugatory if the applicant had to pay in advance for future tax liability that might never accrue, noting that the tax authority should not cripple businesses. The application was allowed, stay of execution was granted pending the hearing of Civil Appeal No. E066 of 2022, and the Registrar was directed to fast track the appeal for hearing within the next term of the Court. The Court apologised to the parties for the delay in delivering the ruling. No costs order was made. As an interlocutory ruling, the Court made no definitive findings on the merits of the tax dispute.

Questions the Court framed

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

  1. 1.Whether a party who has unsuccessfully sought stay of execution in the High Court is precluded from seeking the same remedy in the Court of Appeal (alleged forum shopping)
  2. 2.Whether the intended appeal is arguable
  3. 3.Whether the appeal would be rendered nugatory absent a stay of execution

Key legal issues

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01

Forum shopping - applying for stay in both the High Court and the Court of Appeal

Holding

Seeking stay in the High Court does not preclude a fresh application under rule 5(2)(b); the jurisdiction is original and discretionary.

Reasoning

The Court held that the rule 5(2)(b) jurisdiction is exercised as a court of first instance. Even where a similar application was made and refused in the High Court under Order 42 rule 6(1), the Court of Appeal exercises an original, independent discretion rather than appellate jurisdiction. The respondent's contention that this was forum shopping was a misapprehension of that jurisdiction.

p. 3
02

Whether the intended appeal was arguable

Holding

The intended appeal raising the taxation of political campaign donations and alleged errors in the assessment was not frivolous.

Reasoning

Applying the settled principle that a single bona fide arguable issue suffices and the appeal need not succeed, the Court confined itself to a prima facie consideration of the draft memorandum of appeal. It found the issues - the taxation of political donations and disputed figures in the assessment - not frivolous, leaving definitive findings to the bench hearing the appeal.

p. 4
03

Whether the appeal would be rendered nugatory

Holding

Requiring the applicant to pay tax now, with only a prospect of refund or credit against future taxes if successful, would render the appeal nugatory.

Reasoning

The Court held that nugatory-ness depends on the circumstances of each case, including respective hardships. The respondent's assertion that payments could be credited against future tax liability would require the applicant to pay in advance for a liability that may never accrue. The Court also noted the need to avoid crippling businesses that pay taxes.

p. 4

Legal principles established

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  • A party who has unsuccessfully sought stay of execution in the High Court is not precluded from applying for the same remedy in the Court of Appeal under rule 5(2)(b), which is exercised as original and discretionary jurisdiction
  • An arguable appeal need not raise a multiplicity of issues; a single bona fide issue suffices, and it need not succeed
  • On a rule 5(2)(b) application the court only considers the intended appeal on a prima facie basis and makes no definitive findings

Court orders

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  1. 1.An order of stay of execution of the judgment and decree of the High Court dated 4th March 2022 pending the hearing and determination of Civil Appeal No. E066 of 2022
  2. 2.The Registrar to fast track the appeal, Civil Appeal No. E066 of 2022, for hearing, latest within the next term of the Court
  3. 3.The ruling to apply mutatis mutandis to Civil Application No. Nai E083 of 2022

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 of Kenya at Nairobi
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules
Consolidated with
Civil Application No. Nai E083 of 2022, Evans Odhiambo Kidero v Commissioner of Investigations and Enforcement

Relief refused

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Respondent's proposal that stay be conditional on the applicant paying 60% of the decretal amount and providing a bank guarantee for the balance

Requiring the applicant to pay in advance for future tax liability which may never accrue would not be just

p. 4

Costs

No costs order was made 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.

The jurisdiction of this Court to grant a remedy under rule 5(2) (b) has advisedly been described as "original and discretionary".
p. 3Nature of rule 5(2)(b) jurisdiction
That amounts to requiring the applicant to pay in advance for future tax liability which is yet to accrue, and which may ultimately not accrue.
p. 4Nugatoriness in tax decrees - refund not an adequate answer
Taking into account all the circumstances of this application and, in particular, the fact that the appeal is already filed and ripe for hearing and determination, we hereby allow the application and grant an order of stay of execution.
p. 4Final orders - stay granted
The Registrar shall forthwith fast track the appeal, Civil Appeal No. E066 of 2022, Evans Odhiambo Kidero v. Commissioner, Investigations and Enforcement for hearing, latest within the next term of the Court. It is so ordered.
p. 4Final orders - expedited hearing direction

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, "Kidero v Commissioner, Investigations & Enforcement (Civil Application E082 of 2022) [2025] KECA 260 (KLR)", Case Analysis (2025). Civil Application No. Nai E075 of 2022 (arising from Civil Appeal No. E066 of 2022). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/260/eng@2025-02-21

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