Atati v Ethics and Anti-Corruption Commission; Mwaita & another (Interested Parties)
The bottom line
#What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the applicant has demonstrated an arguable intended appeal
- 2.Whether the intended appeal, if successful, will be rendered nugatory if stay of proceedings is not granted
Key legal issues
#Arguability of the intended appeal
The eight grounds raised, including res judicata and bias, were not frivolous and warranted ventilation at the main hearing
The Court considered whether at least a single bona fide arguable ground existed. Without making definitive findings, it held the grounds challenging the trial court's res judicata finding and alleged bias were worthy of consideration, while avoiding embarrassment to the appeal bench.
Nugatory limb / prejudice
The applicant failed the second limb because the title remains in his name and a status quo order protects his occupation, so no substantial loss would arise
Counsel confirmed the title is registered in the applicant's name and the trial court's status quo order prevents transfer to third parties and preserves occupation. The Court reasoned that without threat of eviction the applicant loses nothing, and it is in the interest of justice that the ELC case be heard to conclusion on merit.
Legal principles established
#- An applicant for stay of proceedings under rule 5(2)(b) must demonstrate the twin principles of an arguable appeal and that the appeal will be rendered nugatory absent stay
- Stay of proceedings pending appeal should be granted only in the rarest of cases where failure to grant it will prejudice the applicant
Court orders
#- 1.The Notice of Motion dated 18th July 2024 is dismissed
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court of Kenya at Mombasa
- ELC No. 175 of 2009
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules, 2022
Relief refused
#Stay of proceedings before Mombasa ELC Case No. 175 of 2009 pending hearing and determination of the intended appeal
The applicant failed to demonstrate that the appeal would be rendered nugatory; title is in his name and status quo protects his occupation, so he stands to lose nothing
Costs
No order as to costs
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.
In view of the forgoing therefore, we nd that the applicant has not surmounted the second limb under rule 5(2)(b) to warrant grant of the application in his favour. Consequently, the Notice of Motion dated 18th July 2024 is hereby dismissed with no order as to costs.
an applicant should demonstrate the twin principles that: the intended appeal is arguable and not frivolous; and that the intended appeal, if it succeeds, will be rendered nugatory if stay orders are not granted.
Stay of court proceedings pending hearing and determination of an appeal against an interlocutory ruling should only be allowed if the circumstances are such that the impugned order will signi cantly prejudice the applicant if the matter proceeds.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Atati v Ethics and Anti-Corruption Commission; Mwaita & another (Interested Parties)", Case Analysis (2025). Civil Application E088 of 2024. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2244/eng@2025-12-19
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.