Kenya Aids NGOs Consortim v Arthur Ingutya & Co Advocates (Civil Appeal (Application) E513 of 2024) [2025] KECA 589 (KLR)
The bottom line
#The Court of Appeal refused to stop payment of Kshs 11.8 million in legal fees, ruling that losing money alone doesn't justify a stay pending appeal.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the appeal or intended appeal is arguable
- 2.Whether, absent stay of execution of the ruling and decree and stay of the garnishee proceedings and decree nisi, the appeal will be rendered nugatory
Key legal issues
#Whether the applicant demonstrated that its appeal would be rendered nugatory if stay of execution were not granted
No; the apprehension of frozen accounts, loss of donor funding and harm to dependents is not the test, and payment of Kshs.11,854,439.57 was not shown to imperil the applicant's existence
The court distinguished substantial loss from nugatory-ness. Even accepting the applicant's concerns sympathetically, a stay turns solely on whether the appeal would be rendered nugatory. The contested payment might inconvenience or inflict substantial loss, but only existential peril to the applicant satisfies the rule 5(2)(b) threshold. The respondent, a stable legal practice, was not shown unable to refund the sum if the appeal succeeded.
Legal principles established
#- To succeed on a rule 5(2)(b) application an applicant must show the appeal is arguable and that the appeal will be rendered nugatory if stay is not granted
- A money decree will not be stayed where the respondent can repay the decretal amount plus interest if the appeal succeeds; substantial loss short of rendering the appeal nugatory does not justify stay
- In a stay application under rule 5(2)(b), the test is nugatory-ness of the appeal, not substantial loss to the applicant; only loss that is existential will render an appeal nugatory
Court orders
#- 1.Dismissal of the notice of motion dated 29th October 2024 with costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court
- Not stated
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the ruling and decree of A. Omollo, J. dated 11th April 2024 upholding the taxing officer's decision on item 2 of the Advocate/Client Bill of Costs
The appeal's success would not be rendered nugatory; any substantial loss is not existential and the respondent is able to repay the decretal amount
Stay of the garnishee proceedings and decree nisi issued on 22nd October 2024
Payment of the decretal sum does not imperil the applicant's existence and the respondent's ability to refund was not doubted
Costs
The notice of motion dated 29th October 2024 dismissed with costs (costs to the respondent).
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 the Court under Rule 5(2)(b) is original and discretionary and it is trite law that to succeed an applicant has to show firstly that his appeal or intended appeal is arguable, to put another way, it is not frivolous and secondly that unless he is granted a stay the appeal or intended appeal, if successful will be rendered nugatory.
In a stay application before this Court, the Court is concerned about whether or not an appeal will be rendered nugatory if stay is not granted. It is not about whether the applicant will suffer substantial loss.
In the end, the notice of motion date 29th October, 2024 is without merit. We dismiss it with costs.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Aids NGOs Consortim v Arthur Ingutya & Co Advocates (Civil Appeal (Application) E513 of 2024) [2025] KECA 589 (KLR)", Case Analysis (2025). Not stated in the judgment (Civil Application dated 29th October 2024, rule 5(2)(b) Court of Appeal Rules). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/589/eng@2025-03-28
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.