Avistia SRO Limited v Njenga & 8 others (Civil Appeal (Application) E621 of 2023) [2024] KECA 1210 (KLR)
The bottom line
#Kenya's Court of Appeal refused to freeze disputed bank funds on appeal because the money was already gone and other court orders protected what remained.
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 the appeal would be rendered nugatory if stay of execution and injunction are not granted
Key legal issues
#Whether an application for stay/injunction survives where the subject matter has been dissipated and the funds are subject to other court orders
The application is moot and fails entirely notwithstanding arguability of the appeal
The funds in the subject accounts had largely been withdrawn, and the balances remaining were subject to a lien order in Conrad Law Associates LLP and status quo orders issued by Mong'are, J and Mshila, J. An appellate court cannot interfere with those orders except on appeal, and equity will not grant orders that would be in vain or unenforceable. Mootness negates the entire application.
Test for stay of execution and injunction pending appeal under Rule 5(2)(b)
Applicant must establish an arguable appeal and that refusal would render the appeal nugatory
Restating the settled Rule 5(2)(b) principles per Stanley Kangethe Kinyanjui v Tony Ketter and Kieni Plains Co. Ltd v Ecobank Kenya Ltd, the court held that a stay or restraining order lies at the court's discretion exercised case by case. The first limb (arguability) was satisfied, but the nugatory limb failed because the orders sought would be academic.
Legal principles established
#- To merit stay or injunction under Rule 5(2)(b), an applicant must show an arguable appeal and that the appeal would be rendered nugatory if the orders are not granted
- An application that has become moot fails in its entirety, including on the nugatory-ingredient limb
Court orders
#- 1.Application dismissed in toto
- 2.Costs to the 6th, 7th, 8th and 10th respondents
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya (Commercial & Admiralty Division)
- HCCOMM No. E484 of 2022 [consolidated with HCC E454 of 2022 & HCC E469 of 2022]
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and Rule 5(2)(b) of the Court of Appeal Rules
Relief refused
#Stay of execution of the High Court judgment and decree dated 19th December 2023
Application moot - funds in the subject accounts had been withdrawn and remaining balances are subject of other preservatory orders; no nugatory aspect shown
Injunction restraining withdrawal or transactions on the subject bank accounts
Equity will not grant an order that would be ineffective; remaining funds are subject to lien and status quo orders issued by other courts
Costs
Application dismissed with costs to the 6th, 7th, 8th and 10th respondents
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.
In the result, while the intended appeal may be arguable, it is merely academic and the application does not succeed on the nugatory aspect. The application therefore fails in toto and we dismiss it with costs to the 6th, 7th, 8th and 10th respondents.
the orders sought by the applicant are not grantable, being moot, which essentially negates not just the nugatory aspect, but the entire application
first, he has an arguable appeal, which means one that raises a bona fide point worthy of consideration, though it need not necessarily succeed and; second, that if the stay or injunction is not granted the appeal would be rendered nugatory
courts have held again and again that it cannot satisfy itself by making orders which cannot be enforced or grant an injunction which will be inefiective for practical purposes
Issues in the judgment
#The case title, case number and applicant's identity are not stated anywhere in the extract; the applicant is referred to only generically and the account numbers are partially masked
Quoted passages from Mativo J and the Supreme Court in Dande are truncated in the extract - the Mativo quote jumps directly from paragraph 23 to an ellipsis, and the Dande quote begins at paragraph 66 with only the quotation text, leaving the quoted material incomplete
Key timeline
#Practical implications
#Frequently asked questions
#Later judgments citing this (1)
#Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.
- Kisoya v Maingi; Blegif Consult Auctioneers (Interested Party) (Civil Case 198 of 2019) [2025] KEMC 104 (KLR)[2025] KEMC 104 (KLR)13 May 2025
Cite this brief
#Cite this brief
Caselaw, "Avistia SRO Limited v Njenga & 8 others (Civil Appeal (Application) E621 of 2023) [2024] KECA 1210 (KLR)", Case Analysis (2024). Not stated in extract (Court of Appeal, Nairobi). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2024/1210/eng@2024-09-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.