Cytonn Investment Partners Four LLP & 6 others v Official Receiver & 2 others
The bottom line
#Supreme Court halts sale of Cytonn properties pending appeal on constitutional rights of buyers.
What this practically means
#The Supreme Court has temporarily stopped the Official Receiver from selling several properties linked to the collapsed Cytonn Investments. This freeze applies to land in areas like Kilimani, Ruiru, and Karen. The Court agreed to hear an appeal from investors who bought these properties, arguing their constitutional rights to property and fair hearing were violated. The order protects the status quo until the full appeal is decided.
Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the Petition of Appeal correctly invokes this Court’s appellate jurisdiction as of right, under Article 163(4)(a) of the Constitution.
- 2.Whether conservatory orders should be granted pending the hearing and determination of the Petition of Appeal.
- 3.Whether the proposed interested parties should be joined to these proceedings.
Key legal issues
#Whether the Petition of Appeal invokes the Supreme Court's appellate jurisdiction as of right under Article 163(4)(a) of the Constitution.
The Court held that the Petition of Appeal meets the threshold under Article 163(4)(a) because the Court of Appeal engaged in the interpretation and application of the Constitution, specifically Articles 40, 50, 36, and 47, even though the substratum of the dispute was a commercial insolvency matter.
The Court applied the test from Bia Tosha Distributors Limited v Kenya Breweries Limited & 6 others, which asks whether any interpretation or application of the Constitution could be readily identified from the pleadings and the court decision. The Court found that the appellants' grounds of appeal before the Court of Appeal specifically raised constitutional arguments, and the Court of Appeal framed issues including whether the rights of bona fide purchasers were violated under Article 40 and whether the appellants' right to fair hearing were violated. Therefore, the Court of Appeal's reasoning took a trajectory of constitutional interpretation or application, satisfying the jurisdictional threshold.
Whether conservatory orders should be granted pending the hearing and determination of the appeal.
The Court granted conservatory orders, finding that the appeal is arguable, that it would be rendered nugatory without the orders, and that public interest favours maintaining the status quo.
The Court applied the three-part test from the Munya Case. On arguability, the Court found that the appellants raised several arguments including on the right to property under Article 40 and the right to fair hearing under Article 50. On the nugatory aspect, the Court was inclined towards preservation of the suit properties, noting that the ramifications of sale to third parties would likely be irreversible. On public interest, the Court balanced the interests of the appellants, the Official Receiver, and the over 3,000 creditors represented by the proposed interested party, and was persuaded that public interest pivots towards allowing the stay to maintain the status quo pending the conclusive determination of the parties' rights through the appeal.
Whether the proposed interested parties should be joined to the proceedings.
The Court allowed both joinder applications, finding that both proposed interested parties had demonstrated a sufficient stake in the matter, had participated in the proceedings before the High Court and Court of Appeal, and stood to be prejudiced if not joined.
The Court applied the test from Rule 24 of the Supreme Court Rules, 2020, and the principles in Francis Karioki Muruatetu & another v Republic and Trusted Society of Human Rights Alliance v Mumo Matemu. The Court noted that both proposed interested parties participated in the proceedings before the High Court and Court of Appeal, and that the Court of Appeal handled the appeal as a consolidated one. The Court found that the nature of the dispute favours all affected persons to be allowed to have their day in court to enable the just determination of the matter. The Court also rejected the appellants' procedural objection regarding timelines, noting that the delay was attributed to e-filing system failure.
Legal principles established
#- An appeal to the Supreme Court is valid if the Court of Appeal interpreted or applied the Constitution, even in a commercial dispute.
- To get a stay order, you must show the appeal is arguable, would be useless without the stay, and public interest supports it.
- A party can join a case if they have a clear stake in the matter and would be harmed if left out.
- The test for constitutional interpretation is whether constitutional issues appear in the court pleadings and decision.
- Conservatory orders can preserve property when sale to third parties would cause irreversible harm.
Court orders
#- 1.The Preliminary Objection dated 30th January 2026, by the respondent is disallowed.
- 2.The Notice of Motion dated 22nd January, 2026 by the appellants is allowed to the extent that this Honourable Court grants conservatory orders restraining the respondent, by themselves, their servants, agents or any other person acting for and/or on their behalf from enforcing and/or implementing the vesting orders affirmed by the Court of Appeal in respect of the properties known as L.R. No(s) 13208/2, 28055 and 28056 (Mystic Plains/Newtown), L.R. 5910, Ruiru (Riverrun), L.R. Kiambaa/Ruaka/520 (Taraji), LR. No. 28223/3 (The Ridge), LR No. 1055/29, Miotoni, Karen (Applewood) and L.R. No 2/85 (Originally 2/44/2), L.R. 2/86 (Originally 2/44/3) and L.R 2/87 (Originally 2/44/4) (Kilimani);
- 3.The Notice of Motion dated 17th February, 2026 for joinder by the proposed 1st interested party (CHYS Creditors’ Committee) is allowed.
- 4.The Notice of Motion dated 17th February, 2026 for joinder by the proposed 2nd interested party (SBM Bank (Kenya) Limited) is allowed.
- 5.Costs of these applications to abide the outcome of the appeal.
The bench
#One judgment of the whole court — no separate or dissenting opinions.
Wrote the judgment
- On appeal from
- Court of Appeal of Kenya
- Jurisdiction invoked
- Article 163(4)(a) of the Constitution
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 appeal must originate from a case where issues of contestation revolved around the interpretation or application of the Constitution, and the appellant must be challenging the Court of Appeal’s interpretation or application of the Constitution.
an appellant must demonstrate that the Court of Appeal’s reasoning and conclusions, which led to the determination of the issue, can properly be said to have taken a trajectory of constitutional interpretation or application.
The applicable test was whether any interpretation or application of the Constitution could be readily identified from the pleadings and the court decision.
the appellant, or intending appellant, must satisfy the court that the appeal or intended appeal is arguable and not frivolous; that unless the order of stay sought is granted, the appeal or intended appeal, were it to eventually succeed, would be rendered nugatory; and that it is in the public interest that the order of stay be granted.
The applicant has to demonstrate that it has a stake/ interest in the matter, stands to suffer prejudice should it not be joined, advanced relevant arguments as a proposed interested party relevant to the petition.
The Notice of Motion dated 22nd January, 2026 by the appellants is allowed to the extent that this Honourable Court grants conservatory orders restraining the respondent, by themselves, their servants, agents or any other person acting for and/or on their behalf from enforcing and/or implementing the vesting orders affirmed by the Court of Appeal
The Notice of Motion dated 17th February, 2026 for joinder by the proposed 1st interested party (CHYS Creditors’ Committee) is allowed.
The Notice of Motion dated 17th February, 2026 for joinder by the proposed 2nd interested party (SBM Bank (Kenya) Limited) is allowed.
Costs of these applications to abide the outcome of the appeal.
Key timeline
#Practical implications
#Constitutional gateway in insolvency appeals
When appealing insolvency rulings, explicitly frame grounds around constitutional rights (e.g., Article 40 on property, Article 50 on fair hearing). The Supreme Court will accept jurisdiction if the Court of Appeal engaged constitutional interpretation, even if the core dispute is commercial. Draft pleadings to highlight constitutional dimensions from the start.
Property buyers gain temporary protection
If you purchased property from a company now in receivership, you can seek conservatory orders from the Supreme Court to halt sale or transfer. You must show your appeal raises serious constitutional issues (like property rights) and that selling to a third party would make your appeal pointless. Act quickly before properties are sold.
Creditors can join property disputes
If you are a creditor in an insolvency case affecting specific properties, you can apply to join Supreme Court proceedings as an interested party. You must show you have a direct financial stake and would suffer prejudice if excluded. This lets you protect your interests even if you are not the main appellant.
Frequently asked questions
#Can I appeal to the Supreme Court in Kenya if my case is about a business dispute?+
Yes, if the Court of Appeal interpreted or applied the Constitution in deciding your case. The Supreme Court will hear your appeal even if the dispute started as a commercial matter, as long as constitutional issues like property rights or fair hearing were part of the court's reasoning.
What is a conservatory order in Kenya and how do I get one?+
A conservatory order temporarily stops an action (like selling property) while your appeal is pending. In Kenya, you must show three things: your appeal is arguable, it would be useless without the order, and public interest supports the freeze. The Supreme Court granted such orders in the Cytonn case.
How do I join a Supreme Court case in Kenya as an interested party?+
You must file an application showing you have a direct stake in the matter, would suffer harm if not joined, and can bring relevant arguments. In the Cytonn case, both a creditors' committee and a bank were allowed to join because they had clear financial interests in the properties.
What happens to properties bought from a company in receivership in Kenya?+
The Official Receiver can take control and sell them to pay creditors. But if you challenge the sale on constitutional grounds (like your right to property), the Supreme Court can issue a temporary freeze. In the Cytonn case, the Court stopped the sale of several properties pending the full appeal.
Cite this brief
#Cite this brief
Caselaw, "Cytonn Investment Partners Four LLP & 6 others v Official Receiver & 2 others", Case Analysis (2026). Petition (Application) E001 of 2026. Source: https://new.kenyalaw.orghttps://new.kenyalaw.org/akn/ke/judgment/kesc/2026/51/eng@2026-07-03
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.