Skip to content
AI-generated case briefs sourced from Kenya Law · Not legal advice
AI-generated case brief
Case Brief · caselaw.co.ke
Court of AppealAllowedNot stated in the judgment

Attorney General & 2 others v Mohammed & 4 others (Civil Appeal (Application) E940 of 2024) [2025] KECA 1197 (KLR)

Court of Appeal of Kenya
4 July 2025
1,464 words in judgment
View original judgmentRead on Kenya Law Watch case
AI-assisted case brief
·~6 min to read original · ~4 min brief

The bottom line

#

Kenya's Court of Appeal halted enforcement of a Kshs 7.9 million High Court award against the state until the appeal is decided, but only if the money is deposited in court within 90 days.

What this practically means

#

Executive summary

#
This is a single-judgment ruling of a three-judge bench of the Court of Appeal at Nairobi, delivered on 4th July 2025 by S. Gatembu Kairu, F. Ochieng and A. O. Muchelule, JJA, on an application dated 3rd February 2025 under Rules 5(2)(b), 43 and 47 of the Court of Appeal Rules, 2022, read with Article 159 of the Constitution. The applicants - state parties - sought stay of execution of a High Court judgment of 30th June 2022 in a constitutional petition in which the trial Judge found the applicants liable for an unjustified shooting by Kenya Defence Forces officers that caused two deaths and injuries, awarding the respondents a decree of Kshs. 7,900,000. The respondents notified the applicants of their intention to execute. The applicants argued the appeal was arguable and would be rendered nugatory if the decretal sum, payable from public coffers, could not be recovered from private citizens. The respondents, though duly served, did not attend the hearing or file affidavits or submissions. The Court applied the twin principles from Stanley Kang'ethe Kinyanjui v Tony Keter and the impecunity rule in International Laboratory for Research on Animal Diseases v Kinyua, holding the appeal arguable and potentially nugatory absent a stay. It allowed the application, staying execution of the decree until the appeal is heard and determined, on condition that the applicants deposit the decretal amount in court within 90 days, failing which the stay lapses automatically. Costs of the application abide the outcome of the appeal. The decision below was not disturbed; this was an interlocutory application.

Questions the Court framed

#

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

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether the appeal would be rendered nugatory if execution of the High Court decree is not stayed pending the hearing and determination of the appeal

Key legal issues

#
01

Whether the intended appeal is arguable

Holding

The Court found the issues raised in the appeal arguable and not frivolous, a position uncontroverted by the respondents who neither filed affidavits nor submissions.

Reasoning

The Court applied the settled test that an arguable appeal need not necessarily succeed; it is enough that it is not frivolous and ought to be argued fully. The applicants identified grounds challenging the trial Judge's finding of liability based on an alleged admission by the applicants' witness. The respondents, though duly served, did not oppose the application, so the assertion of arguability stood unrebutted. This satisfied the first limb of the twin principles under Rule 5(2)(b).

p. 4
02

Whether the appeal would be rendered nugatory if execution is not stayed

Holding

The Court found the appeal might be rendered nugatory if the respondents executed the decree before the appeal was heard and determined, because the decretal sum of Kshs. 7,900,000 would be paid from public coffers and might be unrecoverable from private citizens.

Reasoning

The Court applied the principle from International Laboratory for Research on Animal Diseases v Kinyua that where impecunity is alleged as the basis of nugatory-ness, the onus shifts to the respondent to rebut it by evidence. The respondents, though served, filed nothing and thus did not counter the claim that they could not reimburse the decretal amount. Payment from public coffers, potentially irrecoverable, would render the appeal nugatory, satisfying the second limb of the twin principles.

p. 4

Legal principles established

#
  • In dealing with an application under Rule 5(2)(b) the Court exercises original and discretionary jurisdiction; it does not sit as an appeal against the trial judge's discretion, and it must not make definitive findings of fact or law that could embarrass the hearing of the main appeal.
  • An applicant under Rule 5(2)(b) must satisfy the twin principles of an arguable appeal and that the appeal would be rendered nugatory if the order sought is not granted; a single bona fide arguable ground suffices.
  • Where an applicant alleges that an appeal will be rendered nugatory on account of a respondent's impecunity, the onus shifts to the respondent to rebut that claim by evidence.

Court orders

#
  1. 1.The execution of the decree is stayed until the appeal is heard and determined
  2. 2.The applicants shall deposit the decretal amount in court within the next 90 days, failing which the order for stay of execution shall automatically lapse
  3. 3.Costs of the application shall abide the outcome of the appeal

The bench

#

One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya
Not stated in the judgment
Jurisdiction invoked
Rules 5(2)(b), 43 and 47 of the Court of Appeal Rules, 2022, as read together with Article 159 of the Constitution of Kenya, 2010

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 execution of the decree is stayed until the appeal is heard and determined.
p. 4Final orders - stay of execution granted
The applicants shall deposit the decretal amount in court, within the next 90 days; failing which the order for stay of execution shall automatically lapse.
p. 4Final orders - conditional deposit of decretal amount
Costs of the application shall abide the outcome of the appeal.
p. 4Final orders - costs
Where it is alleged by the applicant that an appeal will be rendered nugatory on account of the respondent's alleged impecunity, the onus shifts to the latter to rebut by evidence the claim.
p. 2Burden of proof on impecunity-based nugatory-ness claims
In considering an application brought under Rule 5 (2) (b) the court must not make definitive or final findings of either fact or law at that stage as doing so may embarrass the ultimate hearing of the main appeal.
p. 2Limits of Rule 5(2)(b) jurisdiction
As the respondents did not file either afidavits or submissions, they are deemed to have chosen not to challenge the application.
p. 4Effect of unopposed application

Key timeline

#

Practical implications

#

Frequently asked questions

#

Cite this brief

#

Cite this brief

Caselaw, "Attorney General & 2 others v Mohammed & 4 others (Civil Appeal (Application) E940 of 2024) [2025] KECA 1197 (KLR)", Case Analysis (2025). Not stated in the judgment. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1197/eng@2025-07-04

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