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Court of AppealPartially AllowedCivil Application No. Nai. (not stated in judgment; Motion dated 29th January, 2025)

Kiugu v Garrity & another (Civil Application E016 of 2025) [2025] KECA 1373 (KLR)

Court of Appeal
18 July 2025
1,528 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

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The Court of Appeal halted execution of a judgment that could have jailed a man for costs before his appeal was heard.

What this practically means

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Executive summary

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The applicant, Erastus Muthuuri Kiugu, moved the Court of Appeal at Nyeri under rule 5(2)(b) of the Court of Appeal Rules seeking a stay of proceedings in Meru CMCC ELC No. 61 of 2022, a stay of execution of the judgment of Mutungi, J. delivered on 1st November 2023 in ELC Appeal No. E014 of 2023, and a stay of the costs order in that judgment, pending an intended appeal. The applicant had been struck out of the subordinate court suit by the trial court but was reinstated by the High Court on the 1st respondent's appeal, with costs taxed at Kshs.264,050, and the 1st respondent had served a notice to show cause exposing the applicant to civil jail. The 1st respondent opposed, arguing that stay is not granted for costs and that the Court lacked jurisdiction to stay subordinate court proceedings. The Court applied the settled rule 5(2)(b) principles from Stanley Kangethe Kinyanjui v. Tony Ketter: the applicant must show an arguable appeal and that it would be rendered nugatory absent stay. The Court found the intended grounds - reinstatement of the applicant and imposition of costs on a party with no interest in the dispute - arguable. On the nugatory limb, following Christopher Ndarathi Murungaru v. KACC, it held that matters with penal consequences are treated differently from purely civil ones, and the applicant should not be incarcerated before his appeal is determined. The Court allowed the Motion, with costs in the intended appeal. The decision binds subordinate courts and the High Court on the stay principles and the civil-jail nugatory principle.

Questions the Court framed

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

  1. 1.Whether the intended appeal is arguable
  2. 2.Whether the intended appeal would be rendered nugatory absent a stay, given the threat of the applicant's incarceration in civil jail for taxed costs

Key legal issues

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01

Arguability of the intended appeal

Holding

The grounds - that the High Court erred in reinstating the applicant after the trial court struck him out, and in imposing costs on a party with no interest in the dispute - are arguable.

Reasoning

The applicant intended to argue that the Judge erred in reinstating him into the magistrate's court suit after the trial court had found he was not a necessary party, and that imposing costs on him imposed an oppressive legal burden. The court found these were not idle grounds, applying the settled rule that an arguable appeal is one requiring consideration, not one guaranteed to succeed.

p. 3
02

Nugatory value where civil jail is threatened

Holding

The threat of the applicant's incarceration before his appeal is determined renders the appeal nugatory, warranting stay of execution of the judgment and the costs order.

Reasoning

Relying on Murungaru v. KACC, the court distinguished purely civil cases, where costs can compensate for an abortive hearing, from matters carrying penal consequences. Because the 1st respondent had served a notice to show cause that could place the applicant in civil jail for taxed costs of Kshs.264,050, the applicant should not be incarcerated before his appeal is heard.

p. 3

Legal principles established

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  • An applicant under rule 5(2)(b) must demonstrate that the appeal or intended appeal is arguable (not frivolous) and that it would be rendered nugatory absent stay.
  • An arguable appeal need not be one that will succeed; it suffices that it requires consideration and determination by the court.
  • Where the consequence of execution would be incarceration of the applicant before his appeal is heard, a stay should be granted because penal consequences are treated differently from purely civil matters.

Court orders

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  1. 1.Stay of execution of the judgment delivered on 1st November, 2023 by Mutungi, J. in ELC Appeal No. E014 of 2023 together with all consequential orders, pending the hearing and determination of the intended appeal
  2. 2.Stay of execution of the order directing the applicant to pay costs as issued in the said judgment, pending hearing and determination of the application and of the intended appeal
  3. 3.The Motion dated 29th January, 2025 is allowed
  4. 4.Costs of the Motion to be in the intended appeal

The bench

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

majority
majority
majority
On appeal from
Environment and Land Court
ELC Appeal No. E014 of 2023
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules, Article 159(2) of the Constitution, sections 3, 3A and 3B of the Appellate Jurisdiction Act

Relief refused

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Stay of proceedings in ELC No. 61 of 2022 at the Chief Magistrate's Court, Meru

The court allowed the Motion generally; the relief specific to staying the magistrate's court proceedings was resisted by the 1st respondent on the basis that the Court lacked jurisdiction to stay subordinate court proceedings, and the court's operative orders focused on the stay of execution

p. 3

Costs

Costs of the Motion will be in the intended appeal.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

We allow the Motion dated 29th January, 2025. Costs of the Motion will be in the intended appeal.
p. 3Final orders - Motion allowed
The applicant should not be incarcerated before his appeal is heard and determined and the application has merit.
p. 3Nugatory principle - civil jail
For an applicant to succeed he must firstly demonstrate that the appeal, or intended appeal, as the case may be, is arguable, which is the same as saying that it is not frivolous.
p. 3Rule 5(2)(b) principles
It can be of no consolation to tell a man that his appeal will not be rendered nugatory even if he went to prison for only one week. The appeal would have been rendered nugatory.
p. 3Penal consequences distinguished from purely civil matters

Issues in the judgment

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minor

The appeal/case number of this application before the Court of Appeal is not stated anywhere in the judgment; only the date of the Motion (29th January, 2025) identifies it.

minor

Although stay of proceedings in the magistrate's court was among the prayers, the final orders do not expressly address that prayer; the orders allowed the Motion generally without itemising a stay of proceedings.

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, "Kiugu v Garrity & another (Civil Application E016 of 2025) [2025] KECA 1373 (KLR)", Case Analysis (2025). Civil Application No. Nai. (not stated in judgment; Motion dated 29th January, 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1373/eng@2025-07-18

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