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Court of AppealDismissedNot stated in the judgment (Civil Application dated 29th October 2024, rule 5(2)(b) Court of Appeal Rules)· [2025] KECA 589 (KLR)

Kenya Aids Ngos Consortim v Arthur Ingutya & Co Advocates

Court of Appeal
28 March 2025
DMD. K. MusingaMNMumbi NgugiFTF. Tuiyott
1,027 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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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

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Executive summary

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This is a single-judgment decision of a three-judge bench of the Court of Appeal in Nairobi dismissing an application dated 29th October 2024 under rule 5(2)(b) of the Court of Appeal Rules. The applicant, Kenya Aids NGO's Consortium, sought stay of execution of a ruling of A. Omollo, J. dated 11th April 2024, which upheld a taxing officer's decision of 19th September 2023 on item 2 of an Advocate/Client Bill of Costs, and stay of garnishee proceedings and a decree nisi issued on 22nd October 2024 in favour of its former advocate, Mr. Arthur Ingutya, for fees of Kshs.11,854,439.57. An appeal against the High Court decision is already lodged. The respondent argued the application was an abuse of process, duplicated a similar application in the High Court, and that the applicant had not shown substantial loss or that the appeal would be rendered nugatory, stressing that his firm could refund any amount found excessive. Applying the settled rule 5(2)(b) principles and the money-decree line of authority, the court held that even if the appeal were arguable, the applicant had not shown the appeal would be rendered nugatory: the claimed harm to operations, donor funding and HIV/AIDS medication supply, though sympathetically viewed, amounted at most to substantial loss, not existential peril, and the respondent's ability to repay was not doubted. The court dismissed the motion with costs. The decision below was not disturbed; this ruling concerns only the stay. It binds subordinate courts and the High Court on the nugatory-ness standard for money-decree stays.

Key legal issues

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01

Whether the applicant demonstrated that its appeal would be rendered nugatory if stay of execution were not granted

Holding

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

Reasoning

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.

p. 2

Legal principles established

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  • 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

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  1. 1.Dismissal of the notice of motion dated 29th October 2024 with costs
On appeal from
High Court
Not stated
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

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, "Kenya Aids Ngos Consortim v Arthur Ingutya & Co Advocates", 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.