Josephat Doe Okiria v Etyang Singa Omunyin
The bottom line
#The Court of Appeal refused a stay because events had already happened — apply for stay urgently, before the order takes effect.
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 trial Judge acted without jurisdiction by reviewing her own decision while the matter was pending before the Court of Appeal
- 2.Whether the application meets the threshold for grant of stay of execution under Rule 5(2)(b) of the Court of Appeal Rules 2022
Key legal issues
#Arguability of the intended appeal
The applicant had an arguable issue on whether the trial court had jurisdiction to hear his application while the appeal was pending
The court accepted that the challenge to the trial court's jurisdiction, raised while an appeal was pending, was not frivolous. An arguable appeal need not succeed; one triable issue suffices, as restated in Somak Travels Ltd v Gladys Aganyo.
Nugatory value of the intended appeal
The applicant failed to show the appeal would be rendered nugatory because the events sought to be stayed had already occurred
The Judge whose recusal was sought had been transferred and the reserved ruling had been delivered. There was nothing left to stay, so the second limb of the Rule 5(2)(b) test failed. The jurisdictional question remained for the substantive appeal.
Legal principles established
#- An applicant under Rule 5(2)(b) must demonstrate an arguable appeal and that the appeal would be rendered nugatory absent a stay
- One arguable point suffices, and an arguable appeal need not necessarily succeed
- An appeal is rendered nugatory only if what is sought to be stayed is irreversible or not compensable in damages
Court orders
#- 1.The application dated 5th December 2025 is dismissed
- 2.No order as to costs
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Bungoma
- Bungoma HC Probate and Administration 525 of 2012
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act; Rules 4, 5(2)(b) and 41 of the Court of Appeal Rules 2022; Order 42 Rule 6 of the Civil Procedure Rules 2010
Relief refused
#Stay of execution of the ruling of 24th November 2025 and stay of delivery of the ruling on the applicant's objection
The application was overtaken by events - the Judge was transferred and the ruling was delivered - so the appeal would not be rendered nugatory
Prayers seeking final relief, including setting aside the trial ruling and deeming the dismissed application allowed
Final in nature and can only be considered at the hearing of the substantive appeal
Costs
No order as to costs, given the circumstances giving rise to the application
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.
An applicant has to satisfy two requirements. Firstly, that he or she has an arguable appeal. Secondly, unless an order of stay is granted the intended appeal would be rendered nugatory.
To this extent the application is overtaken by events, and there is nothing left to stay.
The applicant has therefore not met the required threshold for stay orders, and the application dated 5th December 2025 is accordingly dismissed with no order as to costs, given the circumstances giving rise to the said application.
Issues in the judgment
#Impugned ruling date stated as both 24th November 2025 and 24th November 2024
Objection date stated as both 23rd November 2024 and 23rd November 2025
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Josephat Doe Okiria v Etyang Singa Omunyin", Case Analysis (2026). Civil Appeal (Application) E004 of 2026. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2071/eng@2026-05-22
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.