Asanyo & another v Inspector General of Police & 4 others (Civil Appeal (Application) E086 of 2025) [2026] KECA 1140 (KLR)
The bottom line
#The Court of Appeal refused to pause a Kshs 611,207 costs bill and a criminal case, finding the appeal unarguable and the stay requests legally flawed.
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 applicants have demonstrated an arguable appeal
- 2.Whether the appeal, if successful, would be rendered nugatory absent a stay of execution of the taxed costs
- 3.Whether the Court can stay proceedings in a magistrate's court's criminal case pending appeal under Rule 5(2)(b)
Key legal issues
#Arguability of the appeal
The applicants failed to demonstrate an arguable appeal; the grounds were unpersuasive against the backdrop of the ELC ruling upholding the preliminary objection on jurisdiction.
The ELC had upheld the 3rd and 5th respondents' preliminary objection that, by dint of Article 162(2)(b) of the Constitution and Section 13 of the Environment and Land Court Act, it lacked jurisdiction to entertain a judicial review application challenging the DPP's decision to charge. The Court found the applicants' grounds unarguable against that backdrop and declined to say more, leaving the issues to the bench hearing the appeal.
Nugatory test
Even if the first limb had been satisfied, the appeal would not be rendered nugatory because the taxed amount is not substantial and the administrator has demonstrated ability and willingness to refund it.
The Court assessed the second limb hypothetically, noting the decretal amount (approximately Kshs 611,207/611,880) is not inordinately large, and one of the administrators of the estate, a senior officer in the army, swore he is able and willing to refund the money in the unlikely event the appeal succeeds.
Stay of criminal proceedings before a magistrate's court
The prayer to stay criminal proceedings in the magistrate's court is misconceived because the Court's Rule 5(2)(b) jurisdiction is triggered by a notice of appeal from the High Court or courts of equal status, not from a magistrate's court.
The Court held that Rule 5(2)(b) applications presuppose an appeal before it from the High Court or a court of equal status. Since the criminal case is pending before the Chief Magistrate's Court, the prayer to stay those proceedings pending appeal is not legally tenable and was declared a non-starter.
Legal principles established
#- To succeed on a Rule 5(2)(b) application, an applicant must demonstrate both that the appeal is arguable and that it would be rendered nugatory absent stay; failure on one limb is fatal.
- An application for stay of proceedings under Rule 5(2)(b) requires demonstration of exceptional circumstances.
- The Court of Appeal's jurisdiction under Rule 5(2)(b) to stay proceedings arises from a notice of appeal from the High Court or courts of equal status; it cannot be invoked to stay criminal proceedings pending in a magistrate's court.
Court orders
#- 1.Dismissal of the application dated 22nd December, 2025
- 2.Costs of the application awarded to the 5th respondent
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- Environment and Land Court
- Kilgoris, Environment and Land Court Judicial Review Case No. E002 of 2024
- Jurisdiction invoked
- Article 164(3) of the Constitution; sections 3, 3A, 3B of the Appellate Jurisdiction Act (CAP 9); Rule 5(2)(b) of the Court of Appeal Rules, 2022
Relief refused
#Stay of execution of taxed costs of Kshs 611,207 pending appeal
The applicants failed to demonstrate an arguable appeal; in any event the taxed amount is not substantial and the administrator has demonstrated ability to refund
Stay of further proceedings in Kilgoris Chief Magistrate's Court Criminal Case No. E807 of 2024
The Court's jurisdiction under Rule 5(2)(b) is triggered by a notice of appeal from the High Court or courts of equal status, not proceedings pending in a magistrate's court
Costs
The application dated 22nd December, 2025 is dismissed with costs to the 5th 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.
The applicant must demonstrate that the appeal is arguable, not frivolous, idle or trifiing, though not one that must ultimately succeed and secondly that the appeal if ultimately successful will be rendered nugatory absent stay.
In the case of an application for stay of proceedings, the applicant must demonstrate exceptional circumstances to justify the Court's exercise of discretion in his favor.
The jurisdiction of this court is triggered by the filing of a notice of appeal from the High Court or Courts of equal status. The applicant is inviting us to stay criminal proceedings pending in a magistrate court. Such a prayer is not legally tenable and is misconceived. We say no more.
In the end, we come to the conclusion that the application dated 22nd December, 2025 is without merits, and is hereby dismissed with costs to the 5th respondent.
Issues in the judgment
#Discrepancy in the taxed costs figure: the applicants' grounds state Ksh 611207 while the 5th respondent's pleadings and submissions refer to Ksh 611880.
Date discrepancies in the record: the supporting affidavit is described as sworn on 22nd December, 2022 while the application is dated 22nd December, 2025; and the memorandum of appeal is dated 19th May, 2025 but refers to a Notice of Motion dated 26th November 2026 (a future date).
Internal contradiction in the applicants' own grounds of appeal: ground (a) alleges the ELC judge dismissed the judicial review application 'for want of jurisdiction' while simultaneously alleging he 'correctly found that there are instances when it would be appropriate to challenge the decision to charge', and ground (d) alleges the judge held the ELC could not handle the application despite 'correctly holding that the court was the appropriate court which decision confiicts itself'.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Asanyo & another v Inspector General of Police & 4 others (Civil Appeal (Application) E086 of 2025) [2026] KECA 1140 (KLR)", Case Analysis (2026). Not stated in the extract (application dated 22nd December, 2025; relates to Civil Appeal No. E086 of 2025). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1140/eng@2026-06-12
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.