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Court of AppealPartially AllowedCivil Application (Nairobi) arising from Petition No. E222 of 2023 (notice of motion dated 18th March 2025)

County Government of Nairobi & 6 others v Gichuki (Civil Application E216 of 2025) [2025] KECA 1864 (KLR)

Court of Appeal
7 November 2025
1,571 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 has temporarily frozen a High Court ruling that declared Nairobi's Alcoholic Drinks Control Fund unconstitutional, protecting the county's finances pending appeal.

What this practically means

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Executive summary

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This was an undetermined-respondent notice of motion dated 18th March 2025 brought by applicants under rule 5(2)(b) of the Court of Appeal Rules seeking a stay of execution of the judgment of the High Court (L. Mugambi, J.) delivered on 6th March 2025 in Petition No. E222 of 2023. The High Court had declared section 43 of the Nairobi City County Alcoholic Drinks Control and Licensing Act, which established the Nairobi City County Alcoholic Drinks Control Fund, unconstitutional, and froze withdrawals from the Fund until a constitutionally compliant fund is established under Article 207(4)(b) of the Constitution read with section 116 of the Public Finance Management Act. The applicants argued the intended appeal was arguable and that the Fund freeze exposed them to breach of third-party contracts for rehabilitation centres, medical equipment and drugs, rendering the appeal nugatory. The respondent, though served, filed no response and did not participate. Applying the settled dual test - an arguable appeal and nugatory effect - the Court found the constitutional and statutory interpretation grounds arguable and, given the unrebutted risk of irreparable financial injury to the 1st applicant, which is supported by public taxes, held the appeal risked being nugatory. Balancing public interest, and mindful that a stay may permit continued unconstitutional activity, the Court allowed the motion and stayed execution of the High Court judgment pending the intended appeal. It made no order on costs, given the constitutional nature of the dispute and the undefended application. The judgment does not disturb the decision below; it suspends its execution only.

Questions the Court framed

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

  1. 1.Whether the applicants' intended appeal is arguable
  2. 2.Whether, absent a stay of execution, the intended appeal will be rendered nugatory
  3. 3.Whether the applicants have satisfied the dual principles for the grant of a stay under rule 5(2)(b)
  4. 4.What order as to costs should be made

Key legal issues

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01

Arguability of the intended appeal

Holding

The appeal is arguable because some grounds concern the interpretation of section 116 of the Public Finance Management Act and Article 227 of the Constitution and their effect on section 43 of the Nairobi City County Alcoholic Drinks Control and Licensing Act.

Reasoning

The Court examined the draft memorandum of appeal dated 18th March 2025 bearing 11 grounds. It reiterated that a single bona fide issue suffices. The constitutional and statutory interpretation grounds were held to be deserving of full argument before the Court, satisfying the first limb of the rule 5(2)(b) test.

p. 3
02

Whether the appeal would be rendered nugatory absent a stay

Holding

The appeal stands a risk of being rendered nugatory: the freezing of the Fund exposes the 1st applicant to irreparable financial injury, including default on third-party contracts, which no court order could cure.

Reasoning

Applying the Kinyanjui test, the Court found the applicants' apprehensions not idle and unrebutted, since the respondent filed nothing. Public taxes support the 1st applicant, and public interest demands avoiding wastage of public finances from breach of contractual obligations. The respondent would suffer no prejudice; the applicants faced irreparable financial injury.

p. 4
03

Stay of a judgment declaring a statutory provision unconstitutional

Holding

A stay of a declaration of invalidity may be granted in public interest, even though staying may allow continued unconstitutional activity, where public finances and county functions would otherwise suffer irreparably.

Reasoning

The Court invoked the Okoiti principles on suspension of declarations of invalidity, acknowledging the narrowness of that jurisdiction, but found that public interest in the County discharging its financial obligations outweighed the prejudice, especially in an undefended application.

p. 4

Legal principles established

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  • An applicant under rule 5(2)(b) must demonstrate both an arguable appeal and that, without the relief sought, the appeal or intended appeal will be rendered nugatory; the Court exercises original jurisdiction and does not sit in appeal over the trial judge's discretion.
  • Even a single bona fide issue renders an appeal arguable for purposes of rule 5(2)(b).
  • 'Nugatory' means not only worthless, futile or invalid but also trifling; the test is whether what is sought to be stayed is reversible, or if not reversible, whether damages will reasonably compensate the aggrieved party.
  • In stay applications following a declaration that a statutory provision is unconstitutional, public interest is central: the jurisdiction to suspend declarations of invalidity is narrow and exercised in limited cases.

Court orders

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  1. 1.An order staying the execution of the judgment delivered on 6th March 2025 by the High Court at Nairobi at the Constitutional and Human Rights Division in Petition No. E222 of 2023 pending the hearing and determination of the applicants' intended appeal
  2. 2.No order as to costs

The bench

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

majority
majority
majority
On appeal from
High Court at Nairobi, Constitutional and Human Rights Division
Petition No. E222 of 2023
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (original jurisdiction to grant stay of execution, injunction or stay of further proceedings pending an intended appeal)

Relief refused

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Costs of the application

The intended appeal arises from a dispute regarding the interpretation and application of the Constitution, and the application was undefended

p. 4

Costs

No order on the issue of costs

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.

An applicant must present an arguable appeal while also establishing that, without an order staying execution, an injunction, or a stay of any further proceedings, the appeal or intended appeal will be rendered nugatory.
p. 2Rule 5(2)(b) dual test
Regarding whether the appeal is arguable, it must be recalled that even a single bona fide issue renders an appeal arguable.
p. 3Arguability threshold
Whether or not an appeal will be rendered nugatory depends on whether or not what is sought to be stayed if allowed to happen is reversible; or if it is not reversible whether damages will reasonably compensate the party aggrieved.
p. 3Meaning of nugatory
Consequently, the notice of motion dated 18th March 2025 has merit and is hereby allowed. An order is therefore issued staying the execution of the judgment delivered on 6th March 2025 by the High Court at Nairobi at the Constitutional and Human Rights Division in Petition No. E222 of 2023 pending the hearing and determination of the applicants' intended appeal.
p. 4Final orders / disposition
Noting that the intended appeal arises from a dispute regarding the interpretation and application of the Constitution, and considering that the application was not defended, we make no order on the issue of costs.
p. 4Costs

Issues in the judgment

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minor

The name of the applicants' 7th applicant (and the full case caption) is not expressly printed in the copy of the judgment; only 'the 7th applicant' and its Director, Ms. Rhoda Otieno, and the '1st respondent' are referenced, creating ambiguity in the parties' identities.

minor

The applicants refer to exposure of 'the 1st respondent' to potential litigation, although the parties are consistently referred to elsewhere as applicants and a single respondent; this appears to be an internal drafting slip.

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, "County Government of Nairobi & 6 others v Gichuki (Civil Application E216 of 2025) [2025] KECA 1864 (KLR)", Case Analysis (2025). Civil Application (Nairobi) arising from Petition No. E222 of 2023 (notice of motion dated 18th March 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1864/eng@2025-11-07

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