CKM v EMK (Civil Application E526 of 2024) [2025] KECA 763 (KLR)
The bottom line
#The Court of Appeal paused execution of a Kshs. 27 million judgment, but only on condition the applicant deposits Kshs. 7 million within 90 days.
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 application has met the threshold for the grant of a stay of execution pending the hearing and determination of the intended appeal
Key legal issues
#Whether the intended appeal is arguable
The intended appeal is arguable because the applicant raised bona fide issues, including whether execution could proceed before taxation of costs and whether the decretal amount was correctly computed, which can only be determined at a full hearing.
Applying the Damji Pragji Mandavia principle that a single bona fide arguable ground suffices, the court found that the respondent's detailed counter-submissions on the decretal amount and execution before taxation were matters for determination at a full hearing, not on an interlocutory application. The court accordingly held the intended appeal arguable without making definitive findings of fact or law that would embarrass the ultimate hearing.
Whether the appeal would be rendered nugatory if the stay is not granted
The appeal would be rendered nugatory because the respondent had begun executing a decree of Kshs. 27,242,505 and, being retired with no known source of income, would be unable to refund the decretal sum if the appeal succeeded.
Following Kenya Shell Limited v Benjamin Karuga Kibiru, the court treated the nugatory aspect as central. The applicant demonstrated that execution was in progress and that the respondent's impecunity would make reimbursement impossible, rendering any success on appeal futile. The onus of rebutting impecunity, per International Laboratory for Research on Animal Diseases v Kinyua, was not discharged. The court nonetheless balanced this against the respondent's long history of delay and prejudice.
Whether a conditional stay should issue to balance the parties' interests
A conditional stay was granted, requiring the applicant to deposit Kshs. 7,000,000 in a joint interest-earning account within 90 days, failing which the stay lapses automatically.
While acknowledging the respondent's frustration after decades of delay in recovering her share of matrimonial property, the court held that the applicant's right to a fair hearing on a legitimate appeal must be protected. A conditional stay with security protects both parties: it preserves the substance of the appeal while guarding against unjust enrichment of the respondent and further indefinite delay by the applicant.
Legal principles established
#- To succeed on a Rule 5(2)(b) application, an applicant must satisfy the twin principles: an arguable appeal that is not frivolous, and that the appeal would be rendered nugatory if the stay is not granted.
- Where a respondent's impecunity is alleged as the basis of nugatory-ness, the onus shifts to the respondent to rebut the claim by evidence.
Court orders
#- 1.A stay of execution granted in respect of the ruling and order of the High Court of Kenya at Nairobi (S.N. Riechi, J.) dated and delivered on 14th August 2024 in HCFOS No. 2 of 2022 pending the hearing and determination of the intended appeal
- 2.The applicant shall deposit the sum of Kshs. 7,000,000 in an interest-earning account in the joint names of the advocates for the applicant and the advocates for the respondent within 90 days from the date of the ruling
- 3.In the event that the applicant fails to deposit the said sum within the stipulated time, the stay of execution shall automatically lapse
- 4.The costs of the application shall be in the cause of the intended appeal
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Nairobi
- HCFOS No. 2 of 2022
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Unconditional stay of execution without any security
The court granted only a conditional stay, requiring a deposit of Kshs. 7,000,000 as security to balance the interests of both parties given the respondent's long deprivation of her awarded share
Substitution of the cash deposit with the applicant's land (L.R. No. Makueni/Kako/xxx) as security
The court did not accept land as a substitute; it required a cash deposit in a joint interest-earning account
Costs
The costs of this application shall be in the cause of the intended appeal.
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.
To succeed in an application of this nature, the applicant must satisfy the court that it has an arguable appeal which is not frivolous, that it would sufier irreparable loss if the injunction is not granted, and that the balance of convenience favours the granting of the order.
A stay of execution is hereby granted in respect of the ruling and order of the High Court of Kenya at Nairobi (S.N. Riechi, J.) dated and delivered on 14th August 2024 in HCFOS No.2 of 2022 pending the hearing and determination of the intended appeal.
The applicant shall deposit the sum of Kshs. 7,000,000 in an interest-earning account in the joint names of the advocates for the applicant and the advocates for the respondent within 90 days from the date of this ruling.
In the event that the applicant fails to deposit the said sum within the stipulated time, the stay of execution shall automatically lapse.
The costs of this application shall be in the cause of the intended appeal.
Issues in the judgment
#The decretal security figure varies within the judgment: earlier paragraphs refer to a deposit of Kshs. 27,242,505 as a precondition imposed by the High Court, while the final orders direct a deposit of Kshs. 7,000,000; the text also contains apparent transcription errors ('sufier' for 'suffer', 'ofier' for 'offer', 'infiated' for 'inflated', 'trifiing' for 'trifling') and a mangled quotation of Rule 5(2)(b) at paragraph 30.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "CKM v EMK (Civil Application E526 of 2024) [2025] KECA 763 (KLR)", Case Analysis (2025). Civil Application No. E441 of 2021 (intended appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/763/eng@2025-05-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.