Keitany v The Standard Group Limited t/a Kenya Television Network & 2 others
The bottom line
#Kenya's Court of Appeal refused to stop the release of deposited defamation damages, confirming that orders dismissing a case cannot be stayed.
What this practically means
#Executive summary
#Key legal issues
#Whether the High Court's order allowing the appeal and setting aside the magistrate's judgment was capable of execution and stay
It was not; it was a negative order incapable of execution or stay.
The High Court order allowed the respondents' appeal and set aside the magistrate's judgment, effectively dismissing the applicant's suits. It required or authorized no party to pay money or do anything, so there was nothing to execute or stay. The court invoked its long line of authority, foremost Western College of Arts and Applied Sciences v Oranga, on the impossibility of staying negative orders.
Whether the release of the deposited decretal sum would render the intended appeal nugatory
No; the deposited funds belong to the respondents as successful appellants and their release has no bearing on the appeal.
The Kshs. 3,961,000 was deposited as a condition of a consent stay of the magistrate's judgment. With the respondents having succeeded in the High Court, release is a logical consequence of their success, not execution of the High Court decree. Even if monetary, a sub-Kshs.4 million decree cannot meet the nugatory threshold, especially absent credible evidence of the 1st respondent's impecuniosity.
Whether the intended appeal was arguable
The court could consider the appeal arguable given the low arguability threshold, but this alone could not sustain the application.
The threshold of arguability is very low, requiring only a single bona fide question of law worthy of juridical enquiry, and the court rarely declares an intended appeal unarguable at the interlocutory stage. However, the two limbs of the stay test are conjunctive, and the applicant failed the nugatory limb.
Whether a news report could establish the 1st respondent's financial distress
No; a report by an outlet called NewsFlash could not be taken as credible evidence against an averment on oath that the 1st respondent is a going concern.
The applicant relied on news reports of the Standard Group's financial challenges to contend it could not refund the decretal sum. The court held such a report was not credible evidence in the face of the respondents' sworn averment that the 1st respondent is a going concern well able to meet a sub-Kshs.4 million decree.
Legal principles established
#- A negative order - one that dismisses a suit or sets aside a judgment without requiring any party to pay money or do anything - is incapable of execution and therefore incapable of being stayed.
- The twin limbs of the stay test - arguability and nugatory aspect - are conjunctive; arguability alone does not suffice.
- Funds deposited as security are released to the depositor as a logical consequence of that depositor's success on appeal; their release is not execution of the appellate decree and cannot render a further appeal nugatory.
Court orders
#- 1.The motion dated 27th February 2026 seeking stay of execution is dismissed with costs
- On appeal from
- High Court of Kenya at Milimani, Nairobi
- HCCA No. 187 of 2020
- Jurisdiction invoked
- Inherent/appellate jurisdiction of the Court of Appeal to stay execution pending a intended appeal (rule not specified in the judgment)
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Keitany v The Standard Group Limited t/a Kenya Television Network & 2 others", Case Analysis (2026). Civil Application E108 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1802/eng@2026-09-25
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.