The Kenya Hospital Association T/A The Nairobi Hospital & 1 other v Dr Barcley Onyambu & 2 others
The bottom line
#Kenya's Court of Appeal paused the Nairobi Hospital case, protecting the parties' chosen lawyers, but refused to freeze orders nobody had appealed against.
What this practically means
#Executive summary
#Key legal issues
#Effect of a contested notice of appeal on jurisdiction under rule 5(2)(b)
The Court entertains the rule 5(2)(b) motion on the strength of the notice of appeal on record; challenges to its validity are reserved to the application to strike it out.
Rule 5(2)(b) requires only that a notice of appeal be lodged in accordance with rule 77. The Court, when seized of a rule 5(2)(b) motion, is not required to determine the validity of the notice unless it is outrightly defective on its face. Here the validity dispute required consideration of evidence and was the subject of a pending striking-out application, so the jurisdictional objection was rejected.
Whether the intended appeal is arguable
The intended appeal is arguable; the seven grounds touching on authority to sue, power to appoint an advocate, and disobedience of court orders suffice.
The Court read the proceedings of 9th July 2025 and the ruling of Sifuna, J, noting that the Judge invalidated the board resolution appointing Okubasu & Munene Advocates and the notice of withdrawal, effectively affirming Ashitiva Advocates LLP. The exhibited draft memorandum raised grounds on the authority to sue and the 1st applicant's power to appoint an advocate, which a single arguable point test suffices to satisfy.
Whether the appeal would be rendered nugatory absent stay
Yes - continued proceedings would expose the parties to contempt citation and would moot the appeal if it succeeded on the representation issue.
The impugned ruling found the appointment of the firm to have been in disobedience of a court order, so continuation risks contempt conviction. Central to the appeal is the power to sue and to appoint an advocate; if the appeal succeeded, the suit would have already continued against the applicants' intention and the withdrawal notice would reactivate. No compensation could abridge those consequences, so the nugatory limb was satisfied.
Scope of the stay order
Only the ruling of 9th July 2025, for which a notice of appeal was filed, may be stayed; a blanket stay of all orders is refused.
The Court's jurisdiction under rule 5(2)(b) is anchored on a notice of appeal, and the existence of an arguable appeal against the decision to be stayed is a precondition. Orders not appealed against and with unknown terms cannot be stayed, so the stay was confined to the 9th July 2025 ruling and further proceedings pending Nairobi Civil Appeal No. E571 of 2025.
Legal principles established
#- An applicant under rule 5(2)(b) need only have filed a notice of appeal, and must satisfy both arguability and nugatory-ness conjunctively; the Court does not enquire into the validity of the notice of appeal unless it is outrightly defective on its face.
- The Court cannot issue a blanket stay of orders not appealed against; its stay jurisdiction is confined to the decision appealed against.
- A single bona fide arguable point suffices to establish arguability for purposes of rule 5(2)(b).
- Where continuation of contempt proceedings would render an intended appeal nugatory, a stay of proceedings should be granted.
Court orders
#- 1.An order staying the execution of the orders and decree emanating from the ruling of Prof. N. Sifuna, J of 9th July 2025 in Milimani Civil Case No. E173 of 2025, pending the hearing and determination of the intended appeal
- 2.An order staying any further proceedings in Milimani Civil Case No. E173 of 2025, pending the hearing and determination of Nairobi Civil Appeal No. E571 of 2025 between the parties
- 3.Costs shall abide, and be in accordance with, the order on costs in the main appeal
- 4.Directions: Okubasu & Munene Advocates to file and serve submissions on the appeal within 7 days; respondents and Ashitiva Advocates LLP to file and serve submissions within 7 days thereafter
- 5.Directions on the Notice of Motion dated 26th August 2025 seeking to strike out the Notice of Appeal dated 22nd July 2025: respondents to file responses within 7 days, then Ashitiva Advocates LLP submissions within 7 days, then respondents' submissions within 7 days
- 6.The Registrar of the Court directed to fix both the appeal and the Notice of Motion for contemporaneous hearing within the current term of the Court
- On appeal from
- High Court of Kenya, Milimani
- Milimani Civil Case No. E173 of 2025
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "The Kenya Hospital Association T/A The Nairobi Hospital & 1 other v Dr Barcley Onyambu & 2 others", Case Analysis (2025). Notice of Motion dated 24th July 2025 (arising from Milimani Civil Case No. E173 of 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1653/eng@2025-10-09
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.