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Court of AppealDismissedCivil Application (Rule 5(2)(b))

Kato v Keesi & 2 others (Sued as the Administrators of Estate of Jonathan Keesi Ngunzi (Deceased)) (Civil Application E186 of 2024) [2025] KECA 973 (KLR)

Court of Appeal of Kenya
23 May 2025
1,471 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~6 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal refused to pause a contempt ruling because the applicant had already vacated the land and could simply move back if he wins.

What this practically means

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Executive summary

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The applicant, John Kato, sought a stay of execution under Rule 5(2)(b) of the Court of Appeal Rules of a ruling of the Environment and Land Court at Makueni (Murigi, J.) of 6th March 2024, which found him guilty of contempt of an injunction order issued on 20th December 2018 restraining him from dealing with the suit property pending determination of the suit. He was ordered to appear for sentencing on 7th May 2024, on which occasion he was directed to purge the contempt by vacating the property within 14 days. The respondents opposed the application, arguing among other things that the notice of appeal was filed out of time, that the injunction had not lapsed, and that the applicant remained in contempt. On the jurisdictional objection, the court declined to rule on the competence of the notice of appeal because a separate application (Civil Application No. E251 of 2024) seeking to strike out the notice was pending. Applying the settled twin tests, the court found the intended appeal arguable — principally on the claim that the injunction lapsed under Order 40 Rule 6 of the Civil Procedure Rules — but held the nugatory test failed: since the applicant said he had already vacated the property, he could simply return to it should the appeal succeed, so no irreversible consequence would follow. The application was accordingly dismissed with costs to the respondents. The court noted, as patently erroneous, the impugned ruling's reference to an order dated 20th November 2018 rather than 20th December 2018.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether the intended appeal is arguable (not frivolous)
  2. 2.Whether, unless execution of the contempt ruling of 6th March 2024 is stayed, the intended appeal will be rendered nugatory

Key legal issues

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01

Arguability of the intended appeal

Holding

The intended appeal was not frivolous, notably on the contention that the order of 20th December 2018 lapsed under Order 40 Rule 6 of the Civil Procedure Rules, though the complaint about the mis-dated reference to '20/11/2018' was patently an error and arguably frivolous.

Reasoning

The court applied the settled test that an arguable appeal need not be one that must succeed. The applicant raised a bona fide legal argument on the lapse of the interlocutory injunction under Order 40 Rule 6. However, the complaint regarding the ruling's reference to an order dated 20/11/2018 instead of 20/12/2018 was dismissed as a patent typographical error clear from the body of the ruling.

p. 3
02

Whether the intended appeal would be rendered nugatory

Holding

The court was not persuaded that the appeal would be rendered nugatory because the principal consequence complained of — loss of occupation of the property — is reversible, as the applicant could return to the property if the appeal succeeded.

Reasoning

The nugatory test turns on irreversibility. The applicant claimed he had vacated the property pursuant to the order of 7th May 2024 to purge contempt; his remaining complaint was loss of consortium with his family. Since vacating the property can be undone by returning should the appeal succeed, no irreversible consequence attended refusal of the stay, and the application necessarily failed.

p. 3
03

Jurisdictional objection based on late filing and service of the notice of appeal

Holding

The court declined to determine the competence of the notice of appeal, deferring to a pending application (Civil Application No. E251 of 2024) in which the respondents seek to have the notice of appeal struck out.

Reasoning

The respondents argued the notice of appeal was filed and served out of time. The court noted that the same issue was the subject of a separate pending application and refrained from prejudging it, confining itself to the twin Rule 5(2)(b) tests of arguability and nugatory effect.

p. 3

Legal principles established

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  • An arguable appeal need not necessarily succeed; it suffices that it is not frivolous for purposes of Rule 5(2)(b).
  • The nugatory-aspect inquiry under Rule 5(2)(b) depends on whether the event sought to be stayed, if allowed to happen, is irreversible.

Court orders

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  1. 1.Dismissal of the application under Rule 5(2)(b) seeking stay of execution of the ruling of 6th March 2024 in Makueni ELC Case No. 337 of 2017
  2. 2.Costs of the application to the respondents

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
Environment and Land Court at Makueni
Makueni ELC Case No. 337 of 2017
Jurisdiction invoked
Rule 5(2)(b) of the Court of Appeal Rules

Relief refused

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Stay of execution of the ELC contempt ruling of 6th March 2024 pending appeal

The intended appeal, though arguable, would not be rendered nugatory if the stay is refused, as the applicant can be restored to the property should the appeal succeed

p. 3

Costs

The application was dismissed with costs to the respondents.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

we are prepared to give the applicant the benefit of doubt that the intended appeal is not frivolous bearing in mind that an arguable appeal is not one that must necessarily succeed
p. 3Rule 5(2)(b) - arguability test
Regarding the nugatory aspect, the position as correctly urged by counsel for the applicant is that this depends on whether what is sought to be stayed if allowed to happen is irreversible.
p. 3Rule 5(2)(b) - nugatory test
Consequently, the application fails. It is accordingly dismissed with costs to the respondents.
p. 3Final orders - dismissal with costs

Issues in the judgment

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minor

Internal date inconsistency in the judgment: the contempt order is described as dated 20th November 2018 but the judgment states it should be 20th December 2018.

minor

The judgment notes an affidavit date error: Dominic Muinde's affidavit is dated 13th April 2024 yet deposes to later events.

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Kato v Keesi & 2 others (Sued as the Administrators of Estate of Jonathan Keesi Ngunzi (Deceased)) (Civil Application E186 of 2024) [2025] KECA 973 (KLR)", Case Analysis (2025). Civil Application (Rule 5(2)(b)). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/973/eng@2025-05-23

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.