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Court of AppealDismissedApplication under Rule 5(2)(b) of the Court of Appeal Rules (intended appeal against High Court directions of 31.8.25 in Constitutional Petition No E565 of 2024)

Maina v Gachagua & 66 others (Civil Application E534 of 2025) [2025] KECA 1946 (KLR)

Court of Appeal
21 November 2025
3,588 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~14 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to pause the Deputy President impeachment court cases, ruling that stopping proceedings is an exceptional measure that prolongs uncertainty.

What this practically means

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Executive summary

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This is a ruling of the Court of Appeal at Nairobi (Kiage, Muchelule and Korir, JJA) dismissing an application under Rule 5(2)(b) by Hon. Jane Njeri Maina seeking a stay and suspension of all proceedings in the consolidated constitutional petitions concerning the impeachment of the former Deputy President, pending her intended appeal against the High Court's directions of 31 August 2025. The High Court had declared various pending interlocutory applications, including contempt applications, 'overtaken by events' and 'spent', and directed amendment of petitions and filings of submissions. The applicant argued that because this Court had previously quashed the empanelment of the High Court bench in Civil Appeal Nos E829 of 2024 and E022 of 2025 (consolidated), the rulings of that bench were void and could not be treated as binding, and that her rights to fair hearing under Articles 47 and 50 were violated. Applying the settled dual-limb test from Stanley Kangethe Kinyanjui v Tony Ketter, the court found the intended appeal arguable - the threshold being a low one - but held that the nugatory limb failed. Relying on Kenya Wildlife Service v James MuteMbei and the Supreme Court's guidance in Khan v International Commercial Company (K) Ltd, the court emphasized that stay of proceedings is a grave and exceptional measure that interferes with the right of access to justice, and that justice must not be delayed, particularly in matters touching sensitive State offices. Finding no real prejudice to the applicant, the court dismissed the motion with costs abiding the outcome of the intended appeal. The decision below was not disturbed; no binding direction was made on the nullity of the High Court bench's rulings.

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 under the Rule 5(2)(b) dual-limb test
  2. 2.Whether the intended appeal would be rendered nugatory if the proceedings in the High Court are not stayed

Key legal issues

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01

Whether the intended appeal challenging the High Court's declaration that pending applications were 'overtaken by events' and 'spent' is arguable

Holding

The intended appeal is arguable, meeting the low threshold of raising even a single bona fide point of law or fact

Reasoning

The court applied the settled Rule 5(2)(b) principles in Stanley Mumo Kiima Kinyanjui v Tony Keter, noting the threshold for arguability is low and easily met. It declined to make determinative findings on the merits at the interlocutory stage, deferring to the bench that would hear the appeal. The applicant's grounds on nullity of the impugned bench's rulings and fair-hearing rights warranted consideration.

p. 7
02

Whether the intended appeal would be rendered nugatory absent a stay of the High Court proceedings

Holding

No nugatory prejudice was demonstrated; the stay limb failed and the motion was dismissed

Reasoning

Drawing on Kenya Wildlife Service v James MuteMbei, Makena v Nalwa and the Supreme Court's guidance in Khan v International Commercial Company (K) Ltd, the court held that stay of proceedings is a grave, exceptional measure. It found the applicant would suffer no real prejudice if the substantive petitions proceeded, while a stay would prolong legal and constitutional uncertainty concerning the Office of the Deputy President. The court emphasized Article 159(2)(b) - justice shall not be delayed.

p. 9

Legal principles established

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  • Orders to stay proceedings are the exception, not the rule; appellate courts must be slow to impede expeditious trial-court proceedings
  • The threshold for stay of proceedings is high and stringent because it interferes with a litigant's right to conduct litigation
  • The threshold for arguability on a Rule 5(2)(b) application is low - a single bona fide point of law or fact suffices

Court orders

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  1. 1.The motion dated 4.9.25 as amended on 9.9.25 is dismissed, with costs abiding the outcome of 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
High Court
Constitutional Petition No E565 of 2024 (consolidated)
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules (application for stay of proceedings pending intended appeal)
Consolidated with
Kerugoya Petitions No E013 of 2024, Kerugoya Petition No E014 of 2024, Kerugoya Petition No E015 of 2024, Nairobi Petition No E550 of 2024, Nairobi Petition No E522 of 2024, Nairobi Petition No E570 of 2024, Nairobi Petition No E572 of 2024

Relief refused

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Stay and suspension of all proceedings, directions or steps in the consolidated High Court petitions pending the intended appeal

The intended appeal, though arguable, would not be rendered nugatory; stay of proceedings is an exceptional measure that would prolong constitutional uncertainty and delay the expeditious determination of the substantive petitions

p. 8

Costs

The motion was dismissed with costs, thereof abiding the outcome of 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.

Orders to stay proceedings ought to be the exception rather than the rule, when the entire justice project is properly understood.
p. 7Stay of proceedings - exceptional remedy
an arguable appeal is one that raises even a single bona fide point of law or fact that calls for an answer from the respondent and is worthy of jural consideration and decision, the threshold is a low one, and easily met
p. 7Arguability threshold under Rule 5(2)(b)
We do not see what real prejudice the applicant stands to sufier from continuation and conclusion of the substantive petitions pending at the High Court.
p. 9Nugatory limb not satisfied
Being so-minded, we find the motion before us to be devoid of merit. It is accordingly dismissed, with costs, thereof abiding the outcome of the intended appeal.
p. 9Disposition - dismissal with costs

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, "Maina v Gachagua & 66 others (Civil Application E534 of 2025) [2025] KECA 1946 (KLR)", Case Analysis (2025). Application under Rule 5(2)(b) of the Court of Appeal Rules (intended appeal against High Court directions of 31.8.25 in Constitutional Petition No E565 of 2024). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1946/eng@2025-11-21

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