Achachi v Richu ((Sued as the administrator of the Onchwati)) (Civil Application E344 of 2024) [2025] KECA 306 (KLR)
The bottom line
#Kenya's Court of Appeal paused execution of a High Court judgment and retrial because an out-of-time appeal raises serious jurisdictional questions.
What this practically means
#Executive summary
#Key legal issues
#Test for stay of execution pending appeal under rule 5(2)(b)
The applicant satisfied the twin limbs: the intended appeal was arguable, challenging the High Court's jurisdiction to hear an appeal filed out of time and without leave, and the appeal would be rendered nugatory if execution and a fresh trial proceeded.
The court applied the settled two-limb test from Chris Munga N. Bichage and Stanley Kangethe Kinyanjui. Grounds challenging the High Court's jurisdiction to entertain an out-of-time appeal without leave rendered the appeal arguable. Allowing a re-hearing before the Magistrate's Court while the intended appeal was pending could render the appeal useless, and the respondent would suffer no serious prejudice since stay would freeze execution for both parties.
Nugatory value of the intended appeal
The appeal would be rendered nugatory if execution of the High Court judgment were not stayed, as a fresh trial and possible judgment before the Magistrate's Court would render the intended appeal worthless.
The court held that mere assertion of nugatory value is insufficient; the applicant must demonstrate the appeal would become worthless. Here, allowing a re-hearing pending the appeal might render it useless, and the court invoked the need to prevent judicial absurdity and protect the sanctity of judicial processes while preserving the parties' position.
Legal principles established
#- An applicant under rule 5(2)(b) must demonstrate both that the appeal is arguable and that it will be rendered nugatory if stay is not granted; demonstrating only one limb is insufficient.
- Whether an appeal will be rendered nugatory depends on whether what is sought to be stayed is reversible, or, if irreversible, whether damages will reasonably compensate the aggrieved party.
Court orders
#- 1.An order staying the execution of the decree arising from the judgment delivered by the High Court on 27th May 2024 in Nairobi High Court Civil Appeal No. E715 of 2021, pending the hearing and determination of the intended appeal
- 2.Costs of the application to abide the outcome of the intended appeal
- On appeal from
- High Court
- Nairobi High Court Civil Appeal No. E715 of 2021 (referred to in the judgment also as No. E715 of 2024)
- Jurisdiction invoked
- Sections 3A and 3B of the Appellate Jurisdiction Act and rules 5(2)(b), 31(1)(b), 44 and 49 of the Court of Appeal Rules
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.
- Kenya Railways Corporation v Jihan Freighters Limited (Civil Appeal (Application) E220 of 2024) [2026] KECA 47 (KLR)[2026] KECA 47 (KLR)30 Jan 2026
Cite this brief
#Cite this brief
Caselaw, "Achachi v Richu ((Sued as the administrator of the Onchwati)) (Civil Application E344 of 2024) [2025] KECA 306 (KLR)", Case Analysis (2025). Nairobi Civil Application No. E715 of 2024 (as discernible from the memorandum of appeal referenced). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/306/eng@2025-02-21
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.