Kenya Electricity Transmission Company Limited (KETRACO) v Instalaciones Inabensa SA & 5 others (Civil Application E778 of 2025) [2026] KECA 688 (KLR)
The bottom line
#KETRACO lost its bid to freeze the Euro 37 million judgment enforcement because appeals against garnishee orders in Kenya need court leave first.
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 intended appeal is arguable
- 2.Whether, if successful, the intended appeal would be rendered nugatory if stay is denied
Key legal issues
#Whether an appeal lies as of right against a garnishee order nisi made under Order 23 of the Civil Procedure Rules
An order under Order 23 rules 1 and 2 is not listed in section 75(1) of the Civil Procedure Act nor in Order 43 as appealable as of right; leave is required and none was sought or granted.
Section 75 of the Civil Procedure Act sets out decisions from which appeals lie as of right. Garnishee proceedings under Order 23 are not expressly identified. Section 75(1)(h) permits appeals from orders made under the rules if expressly allowed by rules, but Order 43 rule 1(1) does not list orders under Order 23 rules 1 and 2. The applicant did not show that leave had been sought and granted.
Whether the intended appeal is arguable
The intended appeal against the grant of a garnishee order nisi is not arguable, as a nisi order is interim and preserves funds pending interrogation of their ownership, and objections can be raised when the order nisi comes up to be made absolute.
The Court noted it was not conclusively determining whether the appeal arose from arbitral or execution proceedings, to avoid prejudicing future challenges to the appeal's validity. However, the applicant admitted the appeal targeted the garnishee order nisi, which is not absolute but preserves funds while the court interrogates ownership and availability. Nothing bars the applicant from raising its objections at the hearing to make the order absolute.
Whether the appeal would be rendered nugatory without stay
Having found the appeal not arguable, the Court declined to consider the nugatory limb.
The Kinyanjui v Ketter principles require satisfaction of both conditions - arguability and nugatory-ness. Since the applicant failed the first condition, the second did not need to be reached, and the application fell to be dismissed on that basis alone.
Legal principles established
#- Orders made under Order 23 rules 1 and 2 of the Civil Procedure Rules (garnishee proceedings) are not appealable as of right and require leave; an appeal under rule 5(2)(b) does not bind the bench that will ultimately hear the appeal.
- Both limbs of the test for stay under rule 5(2)(b) - arguability and nugatory-ness - must be satisfied; failure on either is fatal to the application.
Court orders
#- 1.The application for stay of execution pending intended appeal is dismissed
- 2.Costs of the application awarded to the 1st respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court at Nairobi
- Miscellaneous Application No. E445 of 2019
- Jurisdiction invoked
- Rule 5(2)(b) of the Court of Appeal Rules (application for stay of execution pending intended appeal)
Relief refused
#Stay of execution of the High Court ruling and garnishee order nisi of 11th December 2025 pending the hearing and determination of the intended appeal
The applicant failed to demonstrate that the intended appeal is arguable; the Court therefore did not consider the nugatory limb
Costs
this application fails and is dismissed with costs to the 1st respondent
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.
Our reading of rule 1 subrule (1) of that Order does not reveal that an order made under Order 23 rules 1 and 2 is appealable as of right. It follows that orders made under those provisions require leave.
A garnishee order nisi, as its name connotes, is not an absolute order. It is meant to preserve the funds as the court interrogates their ownership and their availability to settle the decree in question.
for the applicant to succeed, the Court must be satisfied on both conditions of arguability of the intended appeal and the nugatory aspect of the appeal, should it succeed. If the Court is not satisfied in either of them, the application must fail.
In this case, the applicant has not satisfied us that it has an arguable appeal. In the premises, we do not need to consider whether or not the intended appeal, should it succeed, will be rendered nugatory. Consequentially, this application fails and is dismissed with costs to the 1st respondent.
we appreciate that our decision, in the exercise of our jurisdiction under rule 5(2)(b) of the Rules of this Court, does not necessarily bind the bench that will ultimately hear the appeal
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Kenya Electricity Transmission Company Limited (KETRACO) v Instalaciones Inabensa SA & 5 others (Civil Application E778 of 2025) [2026] KECA 688 (KLR)", Case Analysis (2026). Notice of Motion dated 23rd December 2025 (Miscellaneous Application arising from High Court Miscellaneous Application No. E445 of 2019). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/688/eng@2026-03-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.