Kidero v Commissioner, Investigations & Enforcement (Civil Application E082 of 2022) [2025] KECA 260 (KLR)
The bottom line
#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
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 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.Whether the intended appeal is arguable
- 3.Whether the appeal would be rendered nugatory absent a stay of execution
Key legal issues
#Forum shopping - applying for stay in both the High Court and the Court of Appeal
Seeking stay in the High Court does not preclude a fresh application under rule 5(2)(b); the jurisdiction is original and discretionary.
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.
Whether the intended appeal was arguable
The intended appeal raising the taxation of political campaign donations and alleged errors in the assessment was not frivolous.
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.
Whether the appeal would be rendered nugatory
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.
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.
Legal principles established
#- 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
#- 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.The Registrar to fast track the appeal, Civil Appeal No. E066 of 2022, for hearing, latest within the next term of the Court
- 3.The ruling to apply mutatis mutandis to Civil Application No. Nai E083 of 2022
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- 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
#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
Costs
No costs order was made in the judgment.
Quotable passages
#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".
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.
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.
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.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#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.